Drug and alcohol are a major issue in divorce and child custody cases – and it’s one of the things that, in my experience, both Guardians ad litem and judges take seriously because it is very clearly and obviously not in the best interests of a child (or children) to be in the care of a parent who is impaired.
But how do you prove addiction?
Addiction isn’t necessarily easily proven and, if you’ve been to an AA or an Al-Anon meeting, you know the lengths that addicts will go to in order to conceal their addiction. They are likely charming and very believable, even when they’re lying. These are just some basic hallmarks of addiction and addicted behavior, but like all abusers, it can make it difficult for the uninitiated to spot.
And, really, when it comes down to it, divorce and child custody cases – really, any cases where court and the litigated process are involved – it’s not down to what you know or what you suspect, it’s down to what you can prove with empirical evidence.
How do you prove drug addiction? Well, you start with a drug test. There are a number of different drug tests – different panels that test for a different number of substances, and even less common methods, like fingernail and hair follicle tests – that you can ask the court to order (or, if there’s a little bit of civility, you could ask to do by agreement). The more information you know, though, the better, because you want to be sure that you’re asking for the type of drug test that is most likely to yield information on the specific substance you want to know more about.
Some more mainstream substances – like alcohol or marijuana – may not be treated as seriously as something considered more extreme, like meth or cocaine, but, again, it’s all down to the specific evidence. If he has an alcohol problem and has a couple of DUIs, you’ve got some good evidence that he’s not just abusing alcohol but that it has become a problem for which you (or the court) will need to create a solution. But because both of these substances are legal, you’ll have to go further to prove that his use of them is problematic and impacts the best interests of the child(ren) in question.
Will I have to be drug tested, too?
Probably, yes – and, if I were you, I would certainly want to volunteer! Because the court doesn’t like to look like it is partial to one side, or that it is treating mom or dad differently, you are likely to be ordered to undertake the same drug or alcohol screening that your child’s father is. Hey, that’s fine, right? Well, anyway, I hope it’s fine, because what’s good for the goose is good for the gander, right? Only, you do have to make sure that you know what’s in your system before you test (or before you ask for a specific test that will leave you just as exposed as him) and/or that you have a prescription that covers whatever might show up in your system.
Needless to say, it likely will NOT look good for you if you’re telling the court he’s an addict and yet you (and he, or just you and not he) pop positive for a substance that the drug test is looking for. It seems easy to say, hey, you know, either I haven’t used anything, or I’ve used but I have a prescription, but I cannot tell you how often I have known people to be surprised by their test results. Not only that, but no two people test exactly alike; depending on hair color, body size, metabolism, and the type of test ordered, the results can vary dramatically.
In fingernail tests, for example, you can test for binge drinking – but what constitutes binge drinking, exactly, and what would show up in your fingernails versus someone else’s? If we are abiding by actual serving sizes (as in, one shot or one 5 oz glass of wine or whatever), then probably the way most people drink it would constitute binge drinking, right? It’s hard to say exactly, but if there is a question mark around your own sobriety, you’re definitely going to want to tread carefully.
What can I ask for if we do find that he’s using?
What, exactly, you find is going to heavily influence the outcome here – that’s just a fact. Just the fact that he’s using alone doesn’t necessarily mean that more oversight into his parenting time is necessary.
In some cases, it’s enough to just put in a general prohibition on using during the time that the kids are in his care. Probably, though, this prohibition will be made mutual, so you’ll want to be careful on the wording – do you only want to prohibit use of the specific substance he abuses, or do you want to put a general, blanket statement in regarding controlled or illegal drugs or substances? What I’m getting at, mostly, is are you going to wind up with a provision that is too restrictive for you to live with? If neither of you can drink, for example, during your time with the children, then you can’t drink … at all. Does this work for you or is it overly restrictive?
It seems common sense to say you’ll do whatever it takes to keep the kids safe, but that’s a knee jerk reaction. This agreement and its terms are something you’re going to have to live within for – potentially – years, so you’ll want to make sure you really think through whether you can live with or around the restrictions comfortably. Your best friends wedding? Sober. The neighborhood block party? Sober. Girl’s night? If you’re coming home to the kids, you better be – you guessed it – sober. Vacation? Dry as a bone. Make sure the provisions are targeted enough to help you keep the kids safe, but not so restrictive that you are chafing under it. Even for people who don’t drink a lot, not drinking at all, ever, on any and all of their parenting time might seem like a bit much.
You could also ask for or use a program like Soberlink or even just one of the handheld breathalyzers.
You could ask for him to participate in addiction counseling, AA, or other programs to help him navigate addiction and recovery.
You could, on the extreme end, as for supervised visitation or no parenting time or even a gradual step up plan as your child’s father continues on in his sobriety.
What the court will order may be different (and probably less descriptive) than what you can work out between the two of you, so you’ll want to talk to an attorney about what she thinks the court might realistically do based on the evidence that you do (or don’t) have and make a decision on how to move forward from there.
It’s definitely not easy to navigate, but you’re right to investigate your concerns – and to put your time and energy into drafting an agreement (or getting a court order in place) that specifically targets the behaviors that prevent him from keeping the kids safe on his parenting time.
For more information or to request a copy of our divorce or child custody books for moms (or both!) visit our website at hoflaw.com.