“Breaking Bad” in Custody Cases

As the opioid crisis continues to grow as an epidemic across the nation, it is not uncommon for a custody case to have one or both parents actively abusing drugs or similar substances. You may wonder how the use of drugs or abuse of alcohol may affect your custody case, and the answer is relatively simple: badly. But to do the question more justice, we’ll delve deeper because as you can imagine, the use and abuse of drugs and alcohol is certainly a factor the court considers in custody cases.

Drug use in custody cases can affect the case in the following three ways:

  1. Visitation. It is highly unlikely that a judge will grant primary physical custody to someone who has just tested positive for illegal substances. In fact, if you test positive for drugs, depending on the type of drug and severity of abuse, you may lose all visitation rights completely. Less severe cases, or in situations where the parent is working to improve their situation, supervised visits and step up plans can sometimes be viable options.
  2. Custody. As mentioned above, if you test positive for drugs, it is also likely you will lose rights to custody altogether depending on the nature of the abuse. Mothers who test positive, or have newborns that test positive, are unable to obtain custody of that child. The same fate is possible in any case where drug abuse or other illegal substances are involved. Depending on the situation, this may not prevent visitations, but it will deeply inhibit the ability of that parent to make decisions on behalf their children.
  3. Parental Rights. In some cases that are usually a little more extreme, an individual may have their parental rights terminated. In the absence of other arrangements, it is entirely possible for the child to enter into the foster care system permanently.

Given this dire information, many parents give up. I’m not here to judge you, so if that is your prerogative, by all means, I’m not advocating against it. But I am here to tell you that if you want to fix things, if you want to be a great parent to your child, and if you want to get custody, hope isn’t necessarily lost.

I’m willing to bet that if you are reading this, you are in the camp with the latter, and that’s great. We’ve talked about it in a prior post, and it is absolutely true: judges love a rehabilitated parent. Choosing to care and choosing to walk away from your old lifestyle is the hardest part. Sticking with that decision is just as difficult, but once you’ve done that, so long as you continue to stay clean, you may have a decent shot at fixing your custody mess. For more information about rehabilitation in custody cases, please see our prior post.

What if you are the sober parent in a situation where the other party is the addict? This can often be just as complicated, but knowing your rights and responsibilities is a good place to start. If you are the sober party, and you know for a fact that the other person is abusing, you should realize you have the upper hand in the situation, but I would caution against showing your cards, so to speak.

You need to be able to prove that the party is abusing drugs. Technically, this is a very simple process.  You bring up drug allegations and the judge will order a urine screening on the spot. Easy, right? Sadly, not always. These screenings are very efficient and excellent at detecting drugs. But some drugs don’t stay in our systems long enough to be detected. An average marijuana user, or recreational marijuana user may pass the screening without doubt. This is why it is a good idea to keep it under wraps, so the party can’t prepare and begin a rapid detox. A word of caution- be prepared to pass a drug test yourself. Nothing is worse than making an accusation against the other party, only to have them pass and turn it back on the original accuser, who will then fail. I’ve seen it happen, please don’t let it be you.

Maybe they aren’t doing drugs, but are selling. Maybe their new significant other is a heavy user. The situations vary and the remedies depend on the situation. That’s why before doing anything, clients should always consult an attorney when drug use is suspected in custody cases. If anything in this post resonates with your case, please contact me at jennifer@jdlawpa.com so we can discuss ways I can help.

This article was written by writer and content strategist, K. Gleason.


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