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November 20, 2018 Blog

Substance Abuse and Child Custody

By: Jaime Humphries Davis

Some of the most emotionally-charged decisions separating parents must make are those surrounding child custody. Determining the optimal custodial arrangement for the children takes many factors into consideration, including the ages of the children, the work and travel schedules of the parents, and so on. When one parent is abusing drugs or alcohol, these highly-emotional decisions become even more complex. While the best interests of the children always come first in custody decisions, ensuring the safety and stability of the children is paramount when substance abuse is involved.

Substance abuse refers to the overindulgence or dependence on alcohol and/or drugs, including the overuse of prescription drugs. The Journal of Studies on Alcohol and Drugs reported a link between alcohol use and divorce, finding that an increase in alcohol consumption increases the divorce rate and that an increase in the divorce rate brings about an increase in alcohol consumption.

If you or your ex-spouse has a substance abuse problem, this article will explain understand how substance abuse can affect a custody case in North Carolina and offer suggestions to assist you in making child custody decisions that are in the best interests of your children.

How might substance abuse impact my child custody case?
Although in recent decades, it has become less common for judges to award full or primary physical custody to one parent over the other, when evidence of substance abuse exists, a judge may be more likely to award custody to the parent without the substance abuse problem. In addition, the court may order supervised visitation between the children and the parent with a recent history of drug or alcohol abuse in certain cases.

Supervision may be provided by a close friend or family member that both parents have agreed upon, or by a paid supervisor. For example, some child psychologists provide this service. In Wake County, Time Together offers a safe, drop-off environment for supervised visitations; and All Kids First arranges for professional supervision in public locations such as parks, restaurants, and museums.

When cases are settled out of court, you can negotiate for different parameters and terms in the agreement that address concerns you may have about substance abuse. For example, the agreement might state that neither parent should consume alcohol while the children are in his or her care. You can get as specific as you’d like in the separation agreement, and the agreement could require that any positive drug test will equate to suspended visitation for a period of time.

What evidence is needed to prove substance abuse?
Evidence such as a DUI, sporadic employment history, or hospitalization for drug- or alcohol-related issues can be used to help prove substance abuse in your child custody case. If you have reason to believe that the other party is using alcohol or drugs, you can also file a motion with the court requesting that the court require the other party submit to a drug test or alcohol screening.

Alcohol/drug screening options include:

Periodic alcohol monitoring, which involves either the installation of a device on the parent’s vehicle or a portable breathalyzer;
Continuous alcohol monitoring bracelets; or
• Periodic or random drug testing (a multi-panel hair follicle drug test is preferred), which typically coincides with the custodial period.

Your child’s other parent may be hesitant to agree to take a drug test due to the cost involved. If that is the case, you may wish to include a clause in the separation agreement or custody order stating that the parent requesting the drug/alcohol test will pay for the test unless the test results are positive.

The separation agreement can also shift the burden for requesting drug or alcohol tests to a third party, such as a counselor, who will meet with the parent and make recommendations on the frequency and timing of the drug/alcohol tests.

If I suspect my ex-spouse is abusing drugs or alcohol when I drop off the children with him/her, what are my rights?
If there is a court order in place that outlines custody arrangements and you refuse to honor the custody arrangement due to suspected alcohol or drug abuse, there is a risk the other side will seek to hold you in contempt. However, in these situations, use your best judgment as a parent. If you have good reason to withhold the visit out of a legitimate concern for your children’s safety, the court is less likely to hold you in contempt. With that said, if you have doubts about whether you may be overreacting, consult with a lawyer, a therapist, or other professional with an objective opinion on the facts of your case before taking action.

What if you are the parent with the substance abuse problem, or what if you are being accused of having a problem?
First, if you find yourself turning to drugs or alcohol, get the help you need. Depending upon the situation, treatment may involve counseling, AA, or rehabilitation whether inpatient or outpatient.
While seeking treatment may temporarily affect your custody arrangements – for example, your custodial time might be supervised until you can prove that you are sober and/or clean for a given length of time – recognize that this temporary solution allows you to preserve your relationship with your children, while allowing you the time you need to get the help that you need. The beauty of child custody is it is not set in stone. Even if you have a court order, in North Carolina, custody schedules are modifiable until your children turn 18.

If you believe that you do not have a problem, and that your child’s other parent is making false accusations in order to gain an advantage in the custody case, it may be time to take proactive steps to combat their accusations. For example, you might quit drinking altogether, and/or agree to wear a continuous monitoring bracelet in order to prove that you are alcohol-free.

The needs and best interests of the children should always come first in a child custody case. Knowing your rights will help you protect your children, while also preserving their relationships with both parents and, most importantly, will help ensure a safe and stable environment during this potentially tumultuous time.

For more information on how substance abuse can affect a child custody case, check out Episode 14 of my podcast “A Year and a Day: Divorce Without Destruction” where I discuss the issue in depth with my law partner Carrie Tortora.

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