When a parent of minor children has a substance use disorder, that factor must be considered when determining custody and visitation arrangements during the divorce process. These decisions can be so difficult for so many reasons, and each family is unique in how exactly they are impacted by an addiction. In extreme cases, prioritizing the best interests of a child may mean severely limiting the level of contact a parent can have with their child while struggling with a substance abuse.
Legal and physical custody
Legal custody refers to the power to make major life decisions for a child, including those concerning education, health and religion. Physical custody encompasses where the child will live and with which parent. Both kinds of custody can be held solely by one parent or jointly between them.
At the center of every decision made about a child in a divorce is the law’s requirement that the child’s best interests override all other factors. So, in a situation involving parental addiction, many factors may impact what is in the child’s best interests, such as:
- Does the parent drink or use in the child’s presence?
- Does the parent engage in behaviors that make the child uncomfortable, result in neglect or threaten the child’s safety?
- Has the parent ever driven under the influence?
- Has the parent committed to treatment or testing? Have they been successful with treatment in the past?
Visitation or parenting time
If a child lives with one parent all or most of the time, then the other parent will typically receive regular and ongoing parenting time with the child. But in a situation involving addiction, maintaining the best interests of the child may mean limiting or preventing an unhealthy parent’s ability to see their child.
Courts recognize that it is typically healthy for a child to have a relationship with both parents and that parents have constitutional rights to parent their own children. However, the child’s best interests and welfare are paramount and take precedence over most other factors.
In order to create a custody arrangement that prioritizes the child’s well-being while still allowing both parents to spend time with them, certain rules may be set in place. The parent struggling with a substance use disorder may have to:
- Have a third party — such as a grandparent, family friend or social worker — present while they have the child
- Stop drinking, using drugs or driving with the child during visitation
- Attend required treatment, AA meetings or psychotherapy
- Submit to regular alcohol or drug testing
- Abide by restrictions for overnight visitation
In serious cases, an unhealthy parent may not receive joint custody or any parenting time at all. In the most extreme cases, that parent could even be vulnerable to losing their parental rights altogether.
How is this decided?
In the divorce process, the parents may be able to negotiate custody and visitation issues as part of an overall marital settlement agreement, subject to the divorce judge’s final approval. If the parents cannot come to an agreement, the judge will need to hear evidence from both parties to help them determine what parenting time and custody arrangements would be in the child’s best interests.
Should a parent develop a substance use disorder after their divorce is finalized, then the other parent may come back to court and ask to change the custody and visitation arrangements in light of the new circumstances.