Addiction

Substance Abuse in Divorce Is as Complicated as You’d Think

In custody disputes, couples and courts can work to ensure children’s safety.

Posted Aug 14, 2018

For many divorcing couples, resolving custody can often be the most protracted part of the process. Determining a schedule that offers both parents meaningful parenting time and defining a process for how major decisions are made on behalf of the children can be complicated, particularly when tensions flare and emotions run deep. 

This becomes increasingly complicated, however, when one parent has a history of substance abuse dependency that raises issues of safety for the children. Whether you are the dependent or formerly-dependent parent (the “Dependent”) or the spouse who has dealt with the addiction during the marriage (the “Spouse”), addiction can present myriad issues when trying to resolve custody in a divorce.

In a custody dispute, particularly one in court, both parents’ mental health is at issue. If substance abuse is alleged against one parent, the court must ensure that appropriate safeguards are implemented so the children’s safety and well-being is protected when they are with the Dependent. This may entail ordering the Dependent to submit to randomized drug and alcohol screenings, including hair follicle tests, or ordering the Dependent to comply with a substance abuse treatment program.

Ultimately, it is incumbent upon the Dependent to be open and truthful regarding his or her issues and evince a willingness to address the issues (whether past or present) to allay the court’s concerns regarding the children’s safety. For the Dependent whose substance abuse is in the past and he or she has maintained a level of documented sobriety, allegations such as these often feel disingenuous. To the Dependent, it can feel as though these allegations are being drudged up to create a narrative that prejudices him or her in the eyes of the court. As courts tend to take a conservative view of substance abuse and err on the side of caution (at least initially), the Dependent is often better positioned to comply with the safeguards to show that no issues exist. If a court determines that safeguards are no longer necessary, it will relax them, either gradually or immediately, depending upon the circumstances.

What is more, if a court determines that the Spouse’s concerns about the Dependent’s substance abuse history are being raised to obtain leverage in the custody dispute, this will not ensure the Spouse’s benefit. In fact, it could have the opposite effect and lead a court to believe that the Spouse is trying to interfere in the relationship between the Dependent and the children.

Meanwhile, managing the fears and expectations of the Spouse can be very challenging. In many circumstances, the Spouse has held the family together while the Dependent has struggled with substance abuse. Understandably, for the Spouse who has been the stable parent and made all the decisions for the children without the Dependent’s participation, it can feel disingenuous (not to mention upsetting) when the Dependent demands equal access with the children and to be involved in making decisions on their behalf.

Just as it is in incumbent upon the Dependent to jump through some hoops and disprove the perception of him or her as an active substance abuser, it is equally important for the Spouse to appear to be rooting for the Dependent’s sobriety and evince a willingness to co-parent with the Dependent. If the Dependent’s commitment to his or her sobriety is indeed half-hearted, then a court will recognize it and insist on having safeguards around the Dependent’s parenting time. However, if the Dependent achieves sobriety and the Spouse continues to focus on the past to insist on how things must be done in the future (e.g. “I always signed the kids up for soccer while he was drinking and he never came to one game, why should I now have to consult with him before signing them up this year”), this will be viewed as an attempt to marginalize the Dependent from the children’s lives which courts are loathe to see from either parent. 

Whether you are a Dependent or a Spouse, dealing with substance abuse in a divorce is complicated, particularly when the couple share children. However, recognizing each parent’s limitations and understanding the way in which courts treat substance abuse allegations can be instructive before engaging in a custody battle where these allegations will invariably be raised in some form or another.