Life changes the moment you have a child. Parents change, supporting their children becomes a top priority, but when couples drift apart, custody concerns arise. Multiple factors are taken into consideration when working through custody agreements, including substance abuse.
The 2023 United States National Survey on Drug Use and Health found that 48.5 million Americans battled substance abuse in the past year. Drug and alcohol dependencies and abuse are becoming more commonplace, and they complicate custody matters because the custody order or agreement must be in the best interest of the child.
California family courts will consider:
- Whether the parent’s substance abuse causes them to be unable to care for the child.
- Whether the inability to care for the child poses a substantial risk of causing serious physical harm or illness to the child.
- Whether there is specific evidence to demonstrate the impact of the substance abuse on the parent’s ability to care for the child and the resulting risk to the child.
- Whether the parent has taken any steps to address their substance abuse issues, their current circumstances, and their willingness and ability to provide appropriate care.
- The child’s health, safety, and welfare to ensure the child’s best interests.
Divorce is complex enough. If child custody involves one or more parents who suffer from substance abuse, it complicates matters even further.
At Wine Country Family Law, P.C., we have locations in Santa Rosa, Petaluma and Ukiah to help you find the right path forward in your child custody journey.
Call us at (707) 669-0841 or online to schedule a consultation with an attorney.
How Can Substance Abuse Impact Child Custody?
Among other things, parents must provide their children with safety, food and shelter, which substance abuse may sadly impact. If a parent’s use of the substance(s) prevents the parent from being able to provide these necessities, custody may be in jeopardy.
Abuse and neglect may or may not occur due to substance abuse. While the risks may be higher, there are some parents who abuse substances yet still maintain relationships and custody of the child.
Misuse of drugs and alcohol may put the child’s safety at risk, and it may be found that:
- Physical child custody is too much of a risk for the child, and the parent loses custody.
- Foster care may be necessary if no other options are available to the courts.
Judges will take substance abuse into consideration during child custody determination. The courts must act in the best interest of the child, and while sole or shared physical custody may not be granted, supervised visitation may be granted.
In addition to the factors noted above, the courts may consider substance use history, frequency and severity. If the parent has past convictions of substance abuse or there is evidence of abuse or neglect, all of these will likely factor into child custody.
Court views can be swayed, and there are options available to both parents in cases of substance abuse.
What Are Your Options As A Parent?
When substance abuse is involved in child custody arrangements, parents have a few options.
Parents who are struggling with substance abuse may:
- Request supervised visitation
- Complete a rehabilitation program to demonstrate their commitment to recovery and provide evidence of sobriety
- Participate in court-ordered programs, such as outpatient counseling or enrolling in substance abuse treatment programs
As the parent progresses in their recovery, they may petition the court to modify or expand their visitation rights. If the parent can demonstrate their progress and ability to provide a safe, stable environment, they may be granted unsupervised visitation.
For the parent who is not abusing substances, there are also options:
- Seeking sole or primary custody if the other parent’s abuse is a concern for the safety and well-being of the child.
- Requesting supervised visitation to ensure the child’s safety during visits.
- Advocating for the child’s best interests by proposing a parenting plan that prioritizes the safety and well-being of the child while also allowing for reunification if the other parent completes treatment.
- Requiring drug and alcohol use testing and reporting.
Ultimately, the courts want to ensure that the child’s best interests are protected. Substance abuse is a serious concern, but there should be evidence to corroborate these allegations and subsequent risks to the child to inform the court’s decision.
What Is The California Law As It Relates To Child Custody And Substance Abuse Issues?
California courts take substance abuse seriously when making child custody decisions. Specifically, Family Code Section 3011 requires the courts to consider the “habitual or continual illegal use” of controlled substances, alcohol, or prescribed controlled substances when determining the best interests of the child. This includes the use of cannabis / marijuana.
However, before the court considers substance abuse allegations, it may require independent corroboration, which may include written reports from social welfare agencies, law enforcement agencies, courts, medical facilities, or organizations providing drug and alcohol abuse services.
Under Family Code Section 3014.5, the court may also order the parent accused of substance abuse to undergo testing for the use of alcohol or illegal use of controlled substances if there is a preponderance of evidence of abuse.
Should the court order sole or joint custody or unsupervised visitation to the parent who is accused of substance abuse, the court must also state its reasons in writing or on record that the decision is in the best interest of the child.
While the courts will take substance abuse into consideration when making custody decisions, it’s important to note that under California law, substance abuse alone is not grounds to disqualify parents from custody (In re N.R. (2023)). The court must consider the parent’s overall ability to provide regular care to the child and ensure their safety.
How Can An Attorney Help You If You Have Concerns About Substance Abuse And Your Current Custody Agreement?
If you have concerns about substance abuse and your child custody agreement, an attorney can help you understand your options and find the best course of action to take.
At Wine Country Family Law, P.C., we understand that your child’s safety and welfare are your top priorities. Our team will listen and advise you based on your unique situation
Contact Wine Country Family Law, P.C. today to schedule a consultation.
