Custody cases in and of themselves are hard enough, but one issue that can further complicate an already highly emotional situation is substance abuse. In this episode, host Jaime Davis and her law partner Carrie Tortora offer tips and discuss actions you can take if you find yourself involved in a custody case where substance abuse is an issue.
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Jaime Davis: Welcome to Episode 14 of A Year and a Day. I’m your host, Jaime Davis. In Episode 13, I discussed the importance of self care during the divorce process with my friend and fellow family law attorney, Lynn McNally. In this episode, I will be discussing how substance abuse can affect a child custody case with my law partner, Carrie Tortora. Carrie is a board-certified family law specialist and has practiced exclusively in the area of family law for over 9 years. You may recall that Carrie joined us on Episode 3 of the podcast to discuss myths surrounding separation, and we are glad to have Carrie back with us today. Welcome, Carrie.
Carrie Tortora: Thank you. Happy to be here.
Jaime Davis: Custody cases, in and of themselves, are hard enough, but one issue that can further complicate an already highly emotional situation is substance abuse, and so Carrie and I are gonna talk to you today about the different ways that substance abuse can affect a custody case. The first way is if you know that your child’s other parent is abusing drugs or alcohol. Maybe you know that they’re abusing a substance because you lived with them and you saw it firsthand, or maybe you have some other concrete evidence. And so, in cases like that, what can you do, Carrie?
Carrie Tortora: So custody is always about the best interest of the children, and it is a surprising number of cases that we find in our office and through friends of ours and through family members that struggle with substance abuse issues. It is very common in, um, cases of divorce for one or the other or both parents to struggle with alcohol, um, drugs, whether they are illicit substances or prescription drugs. And so these are issues that arise very frequently. Um, a lot of it depends on whether you are able to resolve your case in court or out of court. And so if you are able to reach an agreement voluntarily with the other parent, you can negotiate for different, um, parameters in the agreement and terms in your contract that address concerns about substance use.
Jaime Davis: Right. I always tell my clients that, you know, the best interest of the children is paramount, and whatever needs to be done to ensure that the kids are safe, that’s what you need to do. And so if you are not able to resolve your case with a separation agreement and you find yourself, you know, going to court on custody issues, I think one way that you can try to protect your children if you think there is a substance abuse problem is to request supervised visitation. I don’t think every case is going to be right for supervised visitation, but I do think in certain circumstances, um, the court may be willing to order that the other parent’s visits be supervised. And, in those cases, um, there are some different supervisors you can have. Sometimes it is a family friend or a family member that both parents are comfortable with and who is comfortable themselves supervising the visits with the other parent. Other times, you might need a, a paid service. Um, in Wake County, there is a place called Time Together where you actually go there for the visitation. You sign up for time slots, and it’s, um, a court-ordered type situation. Another place is called All Kids First. Um, they are willing to supervise visits outside of a more structured setting. Maybe they’ll go with you to the park or to, you know, a playground or, or something like that. And, also, I think some psychology, child psychology practices offer that as a service as well. They have various staff members who, um, you can pay by the hour to supervise a visit, if need be.
Carrie Tortora: Supervision is a good option, although we have a lot of clients who come to us and say, you know, maybe the other parent doesn’t have a DUI or doesn’t have any sort of sporadic employment history, and maybe, um, they don’t have enough proof, if you will, that would warrant supervised visits. And so, short of that, there are other options that you can request or negotiate for, such as alcohol monitoring. And that’s either, um, having the other party install an interlock device on their vehicle, um, or they even have a portable device where you can – it’s a portable breathalyzer, essentially, and it, um, you, the other person blows into it. It can take a picture of that person for identity purposes, and then it also has a GPS invol, included in it.
Jaime Davis: Yeah. I think the, um, program you’re referring to is called Smart Start, and I’ve had some clients have a lot of success with that in their custody cases. Um, I think it’s really great because, like you said, it does take a picture of the person taking the test so that you know, hey, it is my child’s other parent, not some stranger that they asked to take the breathalyzer.
Carrie Tortora: Right.
Jaime Davis: And you know where they are. And so if it’s a case where maybe they have some pending criminal charges and they’re not supposed to be leaving the state of North Carolina, you’re gonna see their report, and it’s gonna show you the GPS location of where they were when they took this test. And so I think that can also be very helpful. And, you know, frankly, it can help you get more evidence for your custody case, if you need it for later on.
Carrie Tortora: Right. Yeah. I mean, the, that, the Smart Start program is for, obviously, geared towards alcohol, so that doesn’t address if you believe that they are, um, using drugs. And so when – in those types of situations, we make proposals or negotiate for either periodic drug testing or random drug testing. Um, and that, typically, that drug testing, typically, will coincide with a custodial period. Um, and so, you know – and even, you can get as technical in a separation agreement as you’d like and say that, you know, any negative, or positive drug test will operate to suspend visitation, um, or that’s just something that you can use your best parenting judgment and do if your ex or your former spouse or your child’s parent receives a positive drug test.
Jaime Davis: Yeah. And I think it’s really important when you are crafting these terms that you are specific about the type of test that you’re gonna require the other parent to take. You’re gonna wanna ask for a multi-panel hair follicle drug test. Um, a simple urine test is probably not gonna be enough for cases where, you know, drug abuse is a big problem.
Carrie Tortora: Right. Yeah. And they, those tests can actually screen for prescription drugs such that if the person has a prescription and is taking the drugs per the prescription, it will, it’s not going to report a positive for those drugs or a – I guess I should say it will screen for those as well.
Jaime Davis: And sometimes folks are hesitant to agree that they will take drug tests, and one of the reasons they like to give is the cost. And so one of the provisions I like to put in my agreements or even consent orders is that the parent requesting that the test be taken pay for the test, unless the test is positive, and then the parent who tested positive should pay. And so sometimes that helps, um, at last get rid of one of the arguments of the parent who doesn’t wanna take the test.
Carrie Tortora: Right. So another option is to put in a consent order or a separation agreement that the parent who has the substance abuse issues or suspected substance abuse asu, issues will get a substance abuse assessment and then follow the recommendations of, um, a counselor or engage in counseling, if that is a recommendation, follow the recommendations of their counselor, and you can even kick it to the counselor to determine whether or not the person needs to be drug and/or alcohol tested on a regular basis or randomly. And so that is a way to take it out of the hands of the other parent to determine whether the spouse or the parent, other parent, needs to be substance abuse tested or drug or alcohol tested. Um, and so it may make it more palatable, or they may be more likely to agree to that type of provision, if they don’t feel like it can be used as a control tactic or a way of gaining some sort of unfair advantage in the case.
Jaime Davis: Yeah. That’s a really good point. And not to switch it back to alcohol, but one thing that just came to mind is, um, the SCRAM bracelet monitoring. I know that –
Carrie Tortora: Yeah.
Jaime Davis: – that it’s not right for every case, but what that is is the person wears, it’s like a bracelet, um, and it actually continually monitors for alcohol. And so I think it is only appropriate in very severe cases. I don’t think most folks are just gonna be willing to sign themselves up to wear the SCRAM bracelet such that they can never consume alcohol, even when the children aren’t with them.
Carrie Tortora: Right.
Jaime Davis: Um, but I also think it’s helpful in cases where one parent is accusing the other of alcohol abuse and the parent’s like, I’m not drinking. I quit. And so if you truly have quit and you’re willing to wear this thing for some period of time, you can actually prove to the other parent that, hey, look. I’m being honest. I haven’t had anything to drink over whatever the period of time is.
Carrie Tortora: Yeah.
Jaime Davis: So we, we talked about these cases where there is pretty good evidence of drug use or substance abuse. Um –
Carrie Tortora: Which would be when there is something, I guess, concrete that you can point to. Like, they have a DUI, or they have lost a job, or they have, you know, found themselves in the hospital for drug or alcohol-related issues. And that’s what we mean whenever there’s – when we say there’s pretty good evidence, we mean that there’s something other than, you know, a spouse’s observations of that person drinking.
Jaime Davis: You know, unfortunately, though, I think it is all too common that after the separation agreement is signed or after the custody order is entered, one parent begins to hear from neighbors or friends or, or third parties that their child’s other parent is abusing alcohol or abusing drugs. In those cases, I think it’s more difficult, and you have to make sure that you are able to collect your evidence, um, so that you can ensure your children are safe. A, a good way to do that might be to hire a PI and to see what your child’s other parent is up to, especially when he has the children. Um, that would be a great time to have the PI follow him or her.
Carrie Tortora: Yeah, for sure. I mean, and even sometimes the kids will report certain things. And it’s very frustrating for people because what we always say to our clients is, you know, someone can do a wide variety of things when they don’t have the kids, and it doesn’t affect the custody case. And so you may see pictures of this person out in a bar on Facebook. But unless and until we can link their behavior when they don’t have the children to their behavior when they do have the children, then, unfortunately, a lot of times we tell clients, you know, un, until we can prove that it is impacting their ability to care for the children, then this is not going to be something that a judge thinks affects the children at all. Um, but, you know, to Jaime’s point, hiring a PI whenever they do have the children is a good way of collecting evidence. Um, and filing a motion with the court and asking for a drug test – if you feel like you have sufficient evidence, filing a motion and asking for a drug test or asking for, um, an alcohol screen is an option.
Jaime Davis: Right. And as the basis for that motion, you can use some of the more circumstantial evidence that you already have. While that evidence, in and of itself, might not be good enough to, you know, carry the day in your custody case, it’s probably good enough to support a motion for why the court should order a drug test.
Carrie Tortora: Right. Yes. Yeah. Exactly. So, you know, you can’t – you won’t be, necessarily prevail in court exclusively based on the statements that your children made to you, but it may be enough to be able to file a motion and then gather additional evidence after that.
Jaime Davis: You mentioned a moment ago, Carrie, about social media posts and how pictures of the other parent at a bar are probably not good enough. I do think, in some cases, they can be good evidence to corroborate other evidence, um, if, for example, they are checking in on Facebook to bars or, you know, other places and you know they had the kids.
Carrie Tortora: Right. Absolutely. Yeah. I mean, that, that goes to, potentially, a bigger custodial issue of them, you know, leaving the children with third parties to go and do their extracurricular activities, whether that’s drinking or doing drugs or just hanging out at bars. Um, but absolutely. You know, those types of, um, you know, social media and other online activities can be extremely helpful to at least point you in the right direction.
Jaime Davis: So what can you do? I mean, if it is your child’s other parent’s custodial weekend and you think that they are drunk or using drugs, what do you do with that? You can’t send your kids.
Carrie Tortora: Right. Yeah. We have – this happens in a lot of our cases. And, you know, we have to tell our clients that if there is a court order in place, then there is a risk that the other side would seek to hold them in contempt and say that they are in violation of the court order. Um, if, if it turns out that the other person really is abusing drugs and/or alcohol, then a judge will not hold a parent in contempt, in my opinion, um, for not, for withholding custody. Um, and so it’s gonna really depend on the facts and the circumstances of each case as to whether a parent can, is within his or her legal rights of withholding visitation in that circumstance. But, at the end of the day, you know, we always tell folks, defer to your best judgment as a parent. If you feel like you, you know, have a question of whether you may be overreacting to something, then, uh, meet – we, you know, recommend that you consult with a lawyer or a therapist or someone who may have an objective opinion on the facts of your case and the, um, the level at which your children may be at risk.
Jaime Davis: I agree. At the end of the day, custody always boils down to what is in the best interests of the children, and keeping the kids safe is of the utmost importance. And you, as the parent, are typically in the best position to judge whether or not your kids are gonna be safe. And so if you assess the situation and you determine that they are not going to be safe, in your best parenting judgment, then that’s what you go with. And if the other side seeks to have you held in contempt of your court order, you need to be able to explain your decision and why you did what you did. And if you had a good reason to withhold the visit, like Carrie said, the, the court is not likely to hold that person in contempt.
Carrie Tortora: I mean, the other thing, too, in my – it seems that it closely tracks or at least often, um, a, the age of the children is, is important because if you’re talking about a 3 year old who can’t, you know, can’t use a phone, can’t, you know, is in a very dependent position versus maybe a 15 year old who is able to drive or at least use the phone, and, and so you have a little bit more assurances that they can handle a situation differently than a very small child. And so some of this, again, is very factually dependent upon the circumstances of the case. And so, you know, we – a lot of it depends on how you obtained the evidence or the proof that you have. And so, um – and, and, again, it just depends on how, how you got what you got, what you have, the, the specific facts of your children, um, and the history of your case. And so that’s why we always say that it, it’s a very delicate inquiry, that it would, that it’s typically helpful to discuss with another expert.
Jaime Davis: I agree. Whether that expert be a lawyer or a therapist, um, it’s always good to have an objective opinion before you make a big decision like that. So let’s change the focus a little bit. What if you are the parent who might have a problem?
Carrie Tortora: Yeah. You know, if you feel like you are having, are having substance abuse issues, then our recommendation is always that people get healthy. And so that’s better for you, and it makes you a better person. It makes you a better parent. It makes you better able to parent. And so a court – courts appreciate that people struggle with all types of things. We struggle with mental health issues. We struggle with substance abuse issues. And so they don’t punish people for having substance abuse issues. They will make sure that the children are safe, and they – you know, they, they allow people to have custody of their children when they are getting the help that they need. And so we always tell people, you need to put yourself in a situation where you’re doing everything that you possibly can do to get the help that you need.
Jaime Davis: And I think that help varies, de, depending upon what the issue is and, and how bad it is. I mean, help could be attending AA. Help for somebody else might be going to rehab. Maybe it’s a combination of the two. Maybe it’s some sort of counseling, um, that is needed. A court, in my opinion, is not going to look unfavorably upon a person who seeks out the help that they need. Maybe while they are still struggling with addiction, their custodial time might look different. You know, maybe it’s gonna be supervised until the person has completed treatment. Maybe the custodial time will be for a shorter period of time. There are different ways to continue to foster the children’s relationship with the parent while keeping the kids safe, which, again, I know we’ve said that a million times during this episode, but that really is the paramount concern when dealing with substance abuse and alcohol issues in custody cases. Are the children safe?
Carrie Tortora: Right. Yeah. I mean, so if someone comes in our office and says, you know, I feel like I may be, you know, an, an alcoholic or I may be abusing alcohol, um, and then, you know, it’s always our recommendation – it, it’s not something that you wanna sweep under the rug, and it’s not something that you want to – you know, I don’t, I never take the position that, you know, it, it’s any sort of admission of guilt by seeking treatment and seeking help. I think it’s quite, in fact, the opposite. You head off any argument at the pass that you are, you know, do, inappropriately struggling with these issues if you either, if you proactively get help. Um, the other thing that we see a lot of is a spouse or another parent who may say, you know, who may accuse the other parent of having a substance abuse issue as a way of gaining some sort of leverage or, you know, a position of power in the custody case. And so the parent may come to us and say, you know, I have a couple glasses of wine or I, you know, drink a few times a week, but now, all of a sudden, I’m being accused of being an alcoholic. And so dealing with that issue – that’s a, that’s another issue of where the parent does not think they have a problem but the other parent is accusing them of the problem.
Jaime Davis: I think that goes back to what we were talking about earlier. You know, for the parent making the accusation, they’re gonna need some proof. And their statement that the parent has an alcohol problem is not gonna be enough if it’s not coupled with something more concrete. And so if you are the parent being accused of having an alcohol problem and you really don’t think that you do, you think that your coparent is simply trying to gain an advantage in the custody case, you know, maybe you should take some proactive steps to get rid of any argument that parent has. Maybe for a time you stop drinking altogether, you know, completely get rid of their argument.
Carrie Tortora: Right. Yeah. I mean, there’s nothing wrong with stopping drinking, even if you don’t think you have a problem. Right? You know, it’s not a, okay. Well, that’s gonna somehow validate their accusation. Um, but some people choose not to, and so it’s just – um, again, that’s another factually specific issue, um, to determine the best course of action.
Jaime Davis: I agree. Carrie, thank you so much for joining us today. If anyone –
Carrie Tortora: Thank you for having me.
Jaime Davis: If anyone would like to get in touch with you, what’s the best way for them to reach you?
Jaime Davis: I hope you all enjoyed this episode of A Year and a Day. If you have any suggestions for future episodes, I would love to hear from you. You can email me at firstname.lastname@example.org. If you like what you heard today, please leave us a review on iTunes. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general, informational purposes only, should not be used as legal advice, and is specific to the law in North Carolina. If you have questions, before you take any action, you should consult with a lawyer who is licensed in your state.