Addiction and Child Custody

Drug and alcohol addiction is a serious problem in our society. Many families have loved ones who struggle under their addictions for years and years at a time. Watching the recent presidential debate, where President Trump mentioned Senator Biden’s son, who was discharged from the military because of his struggle with addition.

I’m not here to debate politics. In fact, I’m not a particularly political person. But I thought Biden’s response was so sweet. He admitted his son’s struggle with addiction, and said how proud he was that he had overcome it.

My family, too, has someone who struggles with alcohol addiction. In fact, in her case, I’m not even entirely sure she can acknowledge it herself. So, needless to say, for decades, she has gone without any kind of assistance that could help her in overcoming it. Even now, as the disease catches up to her, she struggles to admit it.

There is no question that there is stigma associated with addiction, and a common, fairly pervasive belief that addiction is the result of a lack of willpower, rather than of an actual disease. I am not here to debate the merits or demerits of any particular person. I am a lawyer, not a doctor, and, anyway, it’s irrelevant to my purposes here.

I am here, though, to talk about the impact of addiction – whether mom’s or dad’s – on a custody and visitation case in Virginia. Putting aside the societal stigma of addiction, I think it’s also clear that there are very, very real concerns about addiction when it comes to custody and visitation. A parent needs to know that their children will be safe in the other parent’s care, and addiction can cause that safety to be called into question.

What impact does addiction have on a custody and visitation case?

We’ve talked about mental health issues in divorce and, in many ways, I think addiction – whether drug or alcohol or something else – is similar.

To the extent that your addiction is controlled, it is not a problem. But to the extent that you are unable to acknowledge it, despite evidence to the contrary, or unwilling to seek treatment to manage it, it is a problem.

Addicts often always call themselves addicts. To more or less extent, they are recovering, but they continue to seek treatment. Whether it is AA, counseling, or a program with a doctor, they continue to work to maintain their sobriety.

Mental health issues are similar. To the extent that you have a diagnosis and are working towards treatment, following plan regarding medication, and largely have your symptoms under control, it’s not such a problem.

If you aren’t following a treatment plan, won’t acknowledge your problems, have a criminal history, etc., it is problematic. Your relationship – or your child’s father’s relationship – with your children is important, and the court wants to respect and encourage it. But custody cases are guided by the best interests of the child factors.

Custody and visitation cases are about what’s right for the CHILDREN, not what’s right or fair to the parents.

Obviously, if you’re suffering from addiction, you’re going to have some hurdles to jump to prove your sobriety and to demonstrate your fitness to be a parent. Depending on the extent of your struggle, some things – supervised visitationdrug or alcohol testing, etc – may be appropriate to help ensure that the children are safe.

If you’ve struggled with addiction, you’ll want an attorney in your corner to help you advocate for your rights. But you’ll also want to make sure that you’re following a clear, specific plan, that you’ve worked through with your therapist and/or mental health professional, and that you’re committed to it.

I’ve struggled with addiction. Will my child’s father be able to use this against me FOREVER? I’ve been sober for ages!

No. Technically, anything that happened prior to the entry of the last order is inadmissible. The court is only concerned with what has happened since an order was entered. For your first custody order, the court may look back at your history and a pattern of behavior, but once an order is entered, the only things that are relevant the next time (remember, custody and visitation is repeatedly modifiable as long as there’s a material change in circumstances) are what happened from then until now.

So, if you’ve been sober and had no relapses, it’s not relevant. What IS relevant is how the children are responding to the custody and visitation order, and whether something else would be more appropriate moving forward.

A lot of times I tell my clients that, if they’ve got something in their history that they’ve done “wrong”, it’ll be a bit of an uphill battle. But it’s a good idea to think of custody as a progression, not just as what’s happening right now. Getting more time with the child(ren) as time goes on is the goal. So, even if you’re just now recovering, continue to work on yourself. Maintain your sobriety. Do whatever it takes to ensure that you’re in as strong a position as possible, so that when you petition to modify this court order, you can ask for more time!

What if I’m worried about my child’s father’s addiction? How can I ensure my children will be safe in his care?

Right. If your child’s father is the one who is struggling with addiction, you’re in for a challenging case, too. It’s hard to know what’s going on behind closed doors, and once you and he separated, you probably lost a window into his world. That’s an uncomfortable place to be in. And you don’t want to send your children somewhere where you can’t know for sure that they’re safe!

Drugs and alcohol are inherently scary, and can invite all sorts of problems.

If you’re worried about your child’s father’s fitness, it’s good idea to work with an attorney. He or she can help you argue for drug or alcohol testing to take place, including helping you advocate for the specific kind of drug test that will show the substance he has been abusing. (Spoiler: not all drug tests test for the same things!)

I’ve also seen cases where at-home breathalyzers and other things were used before visitation took place to ensure that dad was sober before he took the children. You may even want to ensure that your children have access to a cell phone or some other device to contact you, so they can reach out if they’re scared or uncertain. Even supervised visitation may be appropriate for a period of time, depending on where he is in his recovery.

Talk to an attorney, though. We can help you come up with a plan designed to deal with the specific problems you’re facing.

Addiction is challenging. But, then again, so are a lot of things. With appropriate advocacy, effective testing, and a lawyer determined to help you come up with a solution that is in your children’s best interests, though, you’ll be well equipped to meet the challenges associated with this type of litigation head on.

For more information, for a copy of our custody book, information about our custody seminar, or to schedule a consultation, give us a call at 757-785-9761

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