Child Custody and Substance Use Disorder in a Divorce Setting

By Janet Howard

In all jurisdictions in the United States, decisions regarding child custody are made according to what is known as a judicial standard. That judicial standard typically is known as the best interests of the child. The best interests of a child are determined on a case-by-case basis, with an examination of the specific facts and circumstances of a particular case. A common consideration when ascertaining the best interests of a child is an examination of the physical, mental, and emotional health of the parents. If a parent is deemed to suffer from what medically is known as substance use disorder, that status can have an impact on a custody determination.

There are a number of issues that are brought to the forefront when a question of substance use disorder is raised in regard to child custody. These include: 

• Overview of substance use disorder 
• Application of best interests of a child standard 
• Substance use disorder and primary child custody 
• Substance use disorder and parenting time or visitation 
• Emergency change of custody or parenting time 

Overview is Substance Use Disorder

Substance use disorder is defined by medical and psychological professionals as a condition that occurs when the recurrent use of drugs of any type (including alcohol, illicit or street drugs, and misused prescriptions) causes significant impairment in a person’s life. Significant impairment can include: 

• Physical health problems 
• Mental health problems 
• Emotional conditions 
• Disabilities of different types 
• Neglect of work responsibilities 
• Neglect of family duties 
• Neglect of other personal responsibilities 

Substance use disorder impacts people from all walks of life, in all age groups. The impact of substance use disorder can jeopardize a parent’s capacity to properly care for and protect a child.

Application of Best Interests of a Child Standard

When an issue arises regarding a parent laboring under substance use disorder, and a consideration of changing custody becomes necessary, the application of the best interests of a child standard applies. A judge is called upon to ascertain how a child is impacted by a parent’s substance use disorder. In this regard, a hearing typically is held and evidence is presented about conduct and actions of the parent relative to mind-altering substance use, abuse, or addiction issues.

Both the parent seeking an alteration of custody or parenting time as a result of the substance use disorder issue and the parent alleged to be so afflicted are provided with a full opportunity to present their case. In addition, a licensed professional may be called in by the court to provide an unbiased assessment of the situation.

Substance Use Disorder and Primary Child Custody

If an issue regarding substance use disorder is confirmed, a court likely will issue an order that at least temporarily changes custody of a minor child. Provided the parent identified as having a substance use disorder seeks appropriate treatment and assistance, in time custody very well may revert back to that parent. If such recovery doesn’t occur, a more permanent change of custody likely will be the outcome.

Substance Use Disorder and Parenting Time or Visitation

If a noncustodial parent is identified as having a substance use disorder, parenting time allocated to that parent may be temporarily suspended. In the alternative, a temporary order of supervised visitation might be handed down by a court.

Emergency Change of Custody or Parenting Time

In many situations involving substance use disorder, a need arises for quick action in regard to contact between a parent with this condition and a minor child. Generally speaking, a parent should never take custody or parenting time changes into their own hands. Rather, a person with a concern about a parent laboring under substance use disorder should seek judicial action to protect the interests of a child.

Courts that deal with custody issues are capable of issuing temporary emergency orders that can allow for a temporary change of custody or a suspension of parenting time until the matter at hand can be more fully explored. This is the course that a party to divorce needs to take when the other parent is identified as having a substance use, abuse, or addiction issue that jeopardizes the welfare of a minor child.

Addressing an issue of substance use disorder within the confines of child custody (or parenting time) presents a complicated legal situation in many cases. It definitely creates an emotionally charged state of affairs. As a consequence, when a custody issue arises associated with substance use disorder, retaining the assistance of an experience child custody lawyer is a recommended course.