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. However, when one parent is abusing drugs or alcohol, these decisions become even more challenging and require additional safeguards to protect the children’s well-being. 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 impact of substance abuse on families is well-documented. For instance, 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 help you understand how substance abuse can affect a custody case in North Carolina and provide actionable steps to protect your children’s best interest.
Although in recent decades, it has become less common for judges to award full or primary physical custody to one parent over the other, evidence of substance abuse can heavily influence custody decisions. When evidence or 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, resources like Time Together offer 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. Additionally, you could include a sobriety clause in the custody agreement, which may require random drug testing or alcohol monitoring for the parent with a history of substance abuse. 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.
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.
Common types of 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.
In addition, the separation agreement can require the involvement of a neutral third party, such as a counselor, who will determine the timing and frequency of drug or alcohol tests. This approach helps reduce potential disputes between the parents.
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, it is critical to use your best judgment as a parent and prioritize your children’s safety. 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.
Documenting any incidents or concerns related to substance abuse can also strengthen your case if it becomes necessary to return to court. This documentation may include dated notes, photographs, or statements from witnesses who observed the behavior in question.
First, if you find yourself turning to drugs or alcohol, seek professional help immediately. Resources like Alcoholics Anonymous (AA), Narcotics Anonymous (NA), or professional counseling and rehabilitation services can be life-changing. 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. Remember, courts prioritize the best interests of the children and often view genuine efforts to seek help positively.
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 to prove drug use in a custody case, or how a sobriety clause in a custody agreement can safeguard your children, check out Episode 14 of my Podcast, “A Year and a Day: Divorce Without Destruction.” In this episode, I discuss the issue of substance abuse and child custody in depth with my law partner Carrie Tortora.
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 our podcast, 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.
