Substance Abuse and Child Custody Issues

Getting divorced is tough, but having to deal with substance abuse and child custody issues on top of it can make it even harder.

By WomansDivorce | Answers by Brette Sember, J.D.

When parents are unable to reach an agreement, the court will consider the best interests of the child when determining custody and visitation arrangements. If there is convincing evidence a parent’s excessive drinking or drug use would endanger the child, this will be taken into consideration in the final determination regarding parenting time. Ultimately, the goal is to ensure the safety and well-being of the child.

Picture depicting how parental use of alcohol or drugs can affect child custody and visitation.

In some cases, the court may order supervised visitation or limit the amount of time the parent with the substance abuse problem can spend with the child. The court may also order the parent to undergo substance abuse treatment or counseling as a condition for maintaining or regaining custody or visitation rights. The court may also order regular alcohol monitoring or drug testing as a stipulation for allowing visitation. If the substance abuse issue is severe or ongoing, the court may even terminate parental rights if there are reports of neglect or child abuse.

If you’re concerned about your child’s safety when they are with the other parent, you should consult with an attorney to find out the best way to proceed. It also important to document anything that supports your concerns, such as police or arrest records, DUI charges, documentation of court-mandated programs, child protective services reports, etc.

If you are the parent who has battled with and overcome an addiction, there is hope. If it has been years since the substance abuse was an issue, it will have less weight in the parenting time decision. Showing proof of the treatment you have received and your commitment to ongoing sobriety is important. If you can show the court you’re committed to staying clean, it should help your case.

The following substance abuse and child custody FAQs can also help you understand what your options are.

Substance Abuse and Child Custody FAQs

How can I prove he's a drug-user and not a good parent?

Trish's Question: I am currently in a custody battle with my ex. He still uses and sells crack and heroin. But it's almost impossible to prove. He has supervised visits right now, and he barely comes, but in a month we have to go back to court and he wants to take my daughter for weekends. He has a criminal record involving drugs and violence. What can I do to prove to he will harm my child mentally, physically and emotionally if he is given the chance.

Brette's Answer: Ask for a substance abuse evaluation as well as a mental health evaluation. Ask that a law guardian or guardian ad litem be assigned to the case. Line up your counselors or doctors to come in and testify about how well you're doing.

Could a recorded phone call be used as "proof" of drugs?

Shannon's Question: My ex has recently admitted to me that he was doing opium and pain pills and selling drugs. I'm worried that in his "unfit" state of mind he'll try to drive with her in the car (he has a suspended license) under the influence, or do things in the car when she's with him like selling drugs. I have texts about him being on drugs, but what other "proof" of drugs will I need for court so I can get sole custody of her? Could a recorded phone call be used as "proof" of drugs?

Brette's Answer: You need to check your state laws. In some states it is illegal to tape a phone call without permission. You can get witnesses to testify about his drug use. Video tape might be admissible if your state permits you to tape without permission. Keep a journal. Keep all texts.

Can he get joint physical custody if he's an alcoholic?

Amy's Question: My husband is a severe alcoholic who has admitted to drug use in the last few months. He wants a joint physical custody arrangement in which the kids live 2 months at a time with each parent. He has a Child Protective Services founded report against him, 2 DUI's, and 6 police department domestic violence reports against him in the last three years. What can I do about this?

Brette's Answer: The documentation you have is compelling evidence that your husband should not have custody and I don't know why you would agree to allow him to have them 2 months at a time. You need to have sole custody of these children and if he wants visitation, I would want it to be supervised visitation, at least until he completes a drug and alcohol rehabilitation program. Just present the court with your facts. It would be even easier if you could get him to agree to your plan. If not, you have adequate evidence to convince a judge.

How can I prove that he's an alcoholic?

Jane's Question: My husband is a severe alcoholic. While drinking on average 10-14 alcoholic beverages each night, he has never had a DUI, and he manages to hold on to a job. He drinks alone, and he keeps the problem well hidden. Never the less, he is a neglectful parent and I believe my child is in danger when alone with him. I want full custody of our daughter because I feel that I cannot trust him with her. He has driven with her in the past when he has been under the influence. Can you give me some ideas on what the court will want to see to prove that he has a terrible drinking problem?

Brette's Answer: You could create a journal in which you document how many drinks he has each day and the things he does or says. You could set up a video camera to record his behavior. You could collect receipts from the liquor store. You could take photos of him passed out surrounded by bottles as well if that's possible. You could request an alcohol evaluation be done once you have a case in progress. If the court won't order that, you can have other people testify about his behavior and drinking problem.

Will having a medical marijuana card affect my chances of getting custody?

Brette's Answer: It shouldn't if it is legitimate and for a medical condition. There might be concerns about your ability to supervise if you are under the influence, so you could agree not to smoke when your son is in your care.

Can he get custody because I failed one drug test?

Krista's Question: My husband is upset that I am the one who left and won't come to an agreement on custody of our son. Since we've been split, he has repeatedly called Child Protective Services on me. Unfortunately, I did fail one drug test, but I took a 10 week class and had the charges dismissed. My ex is no angel either. Since we split he has had a DWI, he works two full-time jobs, has a pregnant girlfriend, and doesn't help with any of the expenses for our son. I have an attorney, but my husband still says that he will arrange it where I will never see my son again. Do I have any chance of getting custody since I messed up that one time?

Brette's Answer: I'm glad to hear you have an attorney. As he or she will probably reassure you, it sounds like you're doing all the right things. Everyone makes mistakes, and what the court is interested in is determining who best can care for the child. It sounds like you are that person. Don't let your ex intimidate you. Getting an attorney was a smart thing to do. Try to work with your attorney to put together evidence showing all the ways in which you are a good mother. Keep a journal and document everything that happens.

Could I lose custody because I got a DUI?

Michelle's Question: I was granted emergency custody of my children. My ex-husband had custody for 6 1/2 years. He went to jail for beating up his new wife and hurting her little boy. 2 weeks later his wife tried killing him, leaving him in the hospital for 3 months. Now a couple of days ago I made a mistake and got behind the wheel of a car after having a few drinks and got a DUI. I am scared that the judge is going to give them back to him.

Brette's Answer: First of all, the only way the judge would know is if your ex tried to use that as a reason for a change in custody. It sounds to me like the kids would be in far more danger in his household than yours. However, if you are really concerned, you ought to do something that shows you are taking your arrest seriously - join AA or another treatment program to show you are taking steps to keep it from ever happening again.

Could he get custody changed if I relapsed on my drinking?

Ann's Question: My ex-husband and I have had joint custody and 50/50 placement of our 16 year old daughter since she was 4. I am a recovering alcoholic and relapsed once when my daughter was 13. Unfortunately, last month I also gave in and I drank again for a week. She is upset, and says she doesn't ever want to come back to me. Her dad now wants sole custody. I have been attending AA daily, have a sponsor and will begin counseling. I want to continue to demonstrate good sobriety and resume our 50/50 placement after 30 days sobriety. Do you think he has the ability to get temporary sole custody?

Brette's Answer: Honestly I think that your two relapses are going to be of great concern to the court. The fact that you are going to AA is wonderful and I know what a tough battle this is for you, but that combined with the problems in your relationship with your daughter are going to make this a very hard battle. The court is going to listen to what your 16 year old wants - her wishes are very important at this age. You could ask that the court order counseling for you and your daughter and possibly your ex - then he would have to go to them.

Can I get custody changed if my ex is an alcoholic?

Question: My ex-husband and I share equal custody of our children, and neither of us pays child support. He is an alcoholic and I thought he had it under control when we first split up, so I didn't fight him for sole custody. He picks them up from school, but drinks every night to the point of passing out. I don't want to deny my children their father, but I am worried about their safety when they're with him. Is it possible for a court to change a custody agreement under these circumstances?

Brette's Answer: Yes. This is most definitely a change in circumstances, which is what is required to change a custody order. This may require your kids talking to a Law Guardian, Guardian ad litem, or the judge, but it sounds pretty open and closed. You should start documenting things with a journal or calendar now.

Do I stand a chance at getting custody back after getting clean?

Katharina's Question: I lost custody of my son one year ago because I had a meth problem. Will I be ever able to get more time with him or even maybe get custody back? I have turned my life around and took parenting classes. I also have a good job and have started paying child support and everything. I just want my son back.

Brette's Answer: If your life has changed you can ask for custody or an increase in visitation. You can offer evidence about your job, living conditions, lifestyle, charitable work, rehab, addiction treatment, etc. Witnesses who can testify about the new you are helpful. Get people who can testify about how you've changed, where you live, where you work and that you finished your classes. Good luck.

Could he get custody if he's in rehab and on probation for endangering a child?

Sara's Question: I have sole custody of my 3 year old daughter. Her father has a lot of issues with drugs and is currently in an inpatient rehabilitation center. After he gets out in a month, he still has to complete 6 years of probation due to endangering the welfare of a child (the child he hurt was not ours but was his girlfriends at the time). He is trying to tell me when he gets out of rehab he is going to take me back to court for custody. Do you think he has a chance?

Brette's Answer: I think it would be unlikely he would get anything other than supervised visitation.

How do I make sure he’s drug-free during visitation?

Nicole's Question: My ex is an avid pot smoker and also uses other drugs. I told him not to smoke pot around our daughter and he said he could do what he wanted. I told him she isn't going to be around him until he quits smoking with her in the room and doesn't drive high with her. He always left his drugs (marijuana, edibles, mushrooms, cocaine, and acid) on the floor of the apartment. How can I get it so he can't have any drugs in the apartment or drive unless he is sober?

Brette's Answer: You can have the order modified to direct him not to use or have possession of illegal drugs when around your child. You could also ask for drug testing and have visitation dependent on passing the test. You should talk to your lawyer about the options and how to proceed in your state.

Can I request that he be drug-tested before visitation?

Crystal's Question: My ex was highly addicted to drugs, for which he went through rehab. He now has a new girlfriend and she is known for abusing drugs. They are moving in together and it worries me, because he has visitation every other weekend. How can I be sure he's not abusing again? Can I, being the primary custodian, request that he's tested prior to their visits?

Brette's Answer: Why don't you talk to him first? Express your concerns, but in a non-accusatory way. Ask about the girlfriend - whether she is using and if not, when she stopped. Make it clear you want him to have visitation but that you just want to make sure the kids are safe.

There isn't much you can do on a "what if" situation such as this. You could probably get a court to issue an order that the children are not to be around anyone using drugs and your husband can't use drugs or be high around them, but it doesn't guarantee a thing and is likely to hurt relations between you. You could ask that he be tested for drugs, but the court isn't going to do that before every visit and you couldn't get the girlfriend tested. You may be better to keep an eye on the situation, make your concerns known to him and wait and see. Talk to your attorney and find out how your family court handles these kinds of concerns.

Can I revoke visitation until he's clean?

Brette's Answer: You can't do this without a court order. You can find out more about parenting plan modifications relating to substance abuse and child custody issues.

Can I stop visitation if my ex got a DWI while the kids were with him?

Jessie's Question: My ex got a DWI with the kids in the car. Can I stop him from having the ordered visits and how will this affect the order? What should I be prepared for?

Brette Answers: You can file for a modification. You can ask that he attend alcohol counseling. Visitation may continue, but with the provision that he not be permitted to drive the kids or drink or be drunk around them. Good luck

Can a custodial grandparent refuse visitation due to drug use?

Question: I have custody of my 8 years old granddaughter (who has lived with me since birth) because neither parent was fit due to drug usage. The custody papers say both parents are to have reasonable visitation rights within my discretion. Every time she goes to see her father, I find out he has been smoking marijuana in front of her and I am concerned that his drug use will influence her. I can refuse visitation rights due to his drug usage without having to go to an attorney?

Brette's Answer: If the order says visitation is at your discretion, you can stop it at any time. Be aware he will likely file with the court to be able to continue it and then you will need to provide proof of your concerns.

What should I do about visitation if my ex is an alcoholic?

Jen's Question: We divorced 2 1/2 years ago and my 7 year old son visits his father every other weekend. Because of my ex's drinking, I had it put in our court order that my son is not to be around alcohol. This past month my son has been talking a lot about how daddy drinks beer at night. I'm concerned because the past 2 visits my son hasn't wanted to go to his fathers and had an anxiety attack on the way home from visitation. When I took him to the doctor, the doctor asked my son questions about his home-life and also about dad's house. My son told the doctor that his daddy yells at him a lot and started to get emotional. The doctor diagnosed him with anxiety and said it might be caused by something traumatic that has happened. What should I do about my son's visits with his father?

Brette's Answer: If you have an order restricting alcohol and it is being violated, you can work on a violation of that, but you have to prove it. If professionals are telling you there is a problem in that house, you need to seek to modify the visitation. This is one of those situations where it is difficult to prove what is going on however, so I suggest you get an attorney immediately.

Can visitation be modified if my ex drives drunk with the kids?

Amy's Question: My ex-husband is an alcoholic and has been ordered by the judge to not drink before or during his visitation time with our children (ages 16 and 12). However he does drink when he is with the kids and has driven my youngest son repeatedly while he was drunk. Because he hasn't gotten a DUI and it is basically his word against mine, how can I protect my children?

Brette's Answer: I would suggest you have someone with you during pick up and drop offs who can be a witness if he is drunk at those times. That way it is not your word against his. Your kids are old enough to talk to the judge in chambers or testify about the drinking. You need to go back to family court.

Do my kids have to testify that their Dad drinks during visitation?

Kathie's Question: My divorce degree states that my ex can't consume alcohol during visitation with the kids, yet he does. He has had my 12 year old drive him about 25 miles home because he was too drunk. This weekend, he was very drunk and trying to get my kids in the truck so he could leave. They didn't want to go with him because he was drinking. My 17 year old daughter ended up driving him to a convenience store where I came to get them. We left him passed out in the back of a truck and went home. I don't want to make my kids have to testify against their own father but I don't know what else to do. Do you have any suggestions?

Brette's Answer: They may not have to testify. In some states they can talk with the judge in the judge's chambers. The transcript is not available for parents to read. Ask that a law guardian/Guardian ad litem be appointed.

Will his Dad know what my son tells the judge about his drinking?

Christine's Question: My ex and I share custody of our 9 year old son and my ex was ordered not to drink when we first divorced. My son has told me that his Dad has been drinking 2 bottles of Crown Royal a day. I'm going to try and get full custody of my son because of the alcoholism that's going on now. I'm worried that if my son testifies about his Dad's drinking, that his Dad will blame him and get mad. What can I do?

Brette's Answer: Your son would never testify in open court and would only talk to the judge in chambers. In most states, this is sealed. You could ask that your ex be ordered to attend an alcohol treatment program.

How is visitation handled if he doesn't have a driver's license?

Nicole's Question: My ex is trying to get visitation rights for every other weekend. He has no driver's license and has been in jail a couple times for 3 DWI's. It has been 9 years and he rarely calls to see her. If he does get visitation rights, do I need to meet him or should he drive here to pick her up?

Brette's Answer: Having a relationship with her dad might not be a bad thing, so maybe you should give it a try. He absolutely cannot drive her, so he needs to make alternate transportation arrangements. You do not have to provide transportation.

Can my ex get custody if I date someone who's been in rehab?

Alicia Asks: Could my ex-husband end up getting full custody of my two daughters just because I date a man that was successfully discharged from a rehab because he HAD a physical addiction to prescription painkillers? My ex threatens to take me to court if I continue to date this man.

Brette's Answer: Custody is determined based on what is in the best interests of the children. Someone who has successfully completed rehab is not likely a danger to your daughters unless your husband can show he is using again or is creating a dangerous situation for your children. Also, dating someone is quite different from living with them.

Could I lose custody because my boyfriend got a DWI?

Monica's Question: My children have lived with me for two years and I have residential custody. My fiancé made a mistake and got a DWI and he will be on probation. If my ex-husband finds out that my fiancé is on probation do you think there is a chance that I could lose my custody?

Brette's Answer: I think that you need to be certain your kids are not in the car with him until this blows over. How would your ex find out about the DWI? If he doesn't find out, it isn't a problem. If he does however, he could certainly try for custody. If there are no other problems and you are willing to stipulate that your fiancé will not drive them, that it would most likely not be a problem.


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