Custody and Visitation When Alcohol or Drugs are Involved

Clients frequently ask if they should include drug and alcohol restrictions in the parenting plan if their significant other is an alcoholic or is dealing with chemical dependency. 

If there are concerns about alcohol or drug dependency and addiction, the parenting plan should address the situation head-on and ensure a plan of action is in place to protect the children. 

This article discusses the types of restrictions many attorneys and judges write into a parenting plan when there are alcohol or chemical dependence issues.

Consider the Child’s Best Interest When Drugs and Alcohol are Involved  

Every custody case must take the child’s best interests into account. When determining how parents should share custody rights and responsibilities, courts ensure a child’s safety, health, and well-being come first. Figure out what is in the child’s best interest can be particularly challenging if one of the parents has an addiction to drugs or alcohol.

It is common for parents to lose custody of their children because of drug addiction or alcoholism. Before that can happen, a court must be convinced that a parent has a substance abuse problem. In custody cases, proving alcohol or drug abuse can sometimes be challenging.

Substance abuse can be proven in a number of ways. When you see the other parent drinking or using drugs, it’s important to write down what you saw. It may also be possible to obtain proof from others who know firsthand about the parent’s alcohol or drug abuse. 

Evidence of prior arrest and convictions for drug-related offenses or driving while intoxicated will help prove there is an alcohol or drug addiction issue in the case. 

As mentioned above, in any custody case, the court’s primary concern is the child’s best interest. The court must also keep in mind the rights of parents to interact with their children. Ultimately, dealing with a substance abuse or alcohol abuse case involves balancing the various elements to reach a decision that is in the child’s best interest. 

Below are our recommendations for a parenting plan when there are issues of alcohol or drug dependency.

If a Parent is Currently Abusing Alcohol or Drugs – We Recommend No Contact with the Children

If the parent is currently abusing alcohol or drugs, there should be no contact with the children. Parents currently abusing drugs or alcohol will find it challenging to convince a judge that they can make reasonable decisions in their child’s best interest. 

It’s even less likely that they can present a convincing case for why their child should live with them. The court will almost always award sole legal and physical custody to the non-impaired parent in situations like these.

If you are in this situation, I would still encourage you to have your parenting plan outline a path for addicted parents to see their children.

The process generally involves maintaining sobriety, undergoing a chemical dependency assessment, and receiving treatment.

If the parent who drinks or uses drugs follows the steps in the parenting plan, they can get more and more time with their children. If the parent can maintain sobriety and undergoes the recommended treatment, that parent will begin to have some visitation with the children. 

Initially, visitation should be limited to a few hours of supervised visitation each week. Visitation can eventually lead to overnight visits as sobriety, stability, and trust grows. 

If There has Been a Recent Relapse But The Addiction is Not Severe – We recommend Supervised Visitation

We generally advise parents who have had a recent relapse, but the relapse does not appear to be serious, to maintain contact with their children. In these situations, visitation is usually limited to a few supervised hours per week. As the addicted parent gets treatment and is evaluated, the parenting plan usually lets them visit their kids without being supervised. This is outlined in the parenting plan below.

If there was Drug or Alcohol Abuse in the Past and it is Mildly Suspected Now – We Recommend Evaluation

Trust is always a difficult thing when there has been alcohol or drug abuse in the past. It is almost always suspected when couples are going through a divorce and custody battle.

If you have these concerns, we usually recommend that the parent undergo a drug and alcohol evaluation as part of the parenting plan. Any treatment recommended by the evaluator must be completed. If the evaluator does not believe there is any issue, the matter is resolved and does not have to be part of the parenting plan. 

If there are Concerns About Drug and Alcohol Abuse, Have Urinalysis Testing Be Mandatory as Part of the Parenting Plan

We recommend that the parenting plan should include a clause that says a urinalysis should be done right away if there are any signs of drug or alcohol abuse. 

Regardless of the severity of the addiction or suspected addiction, if there has been a history of drug or alcohol abuse, the parenting plan should restrict the parent from consuming drugs or alcohol.

In addition, we recommend that the other parent be given the right to suspend visitation and request an immediate urinalysis (UA) if they suspect a relapse. This protects children from parents who stray from their rehabilitation plans.

Example Sobriety Clause Language for a Parenting Plan

Below is an example of language to include in a parenting plan when there are drug and alcohol issues. 

“Chemical Dependence Suspected”

“The respondent shall not be allowed to consume alcohol or be under the influence of illegal or non-prescribed medications. If the Petitioner suspects the other parent is under the influence of alcohol, illicit drugs, or non-prescribed medications, they may suspend the other party’s visitation time. 

The Respondent must obtain a urinalysis that same day or the following morning if the request was made after business hours. 

The Respondent pays urinalysis fees if the urinalysis result is positive for alcohol, drugs, or non-prescribed medication. If the urinalysis is negative, Petitioner will be required to reimburse Respondent for the expenses of the urinalysis testing. 

The requirements of this paragraph shall terminate and become unenforceable if the Respondent has three consecutive negative urinalysis test results.

It is the Respondent’s responsibility to obtain a chemical use assessment at their expense. The evaluator is responsible for contacting witnesses to the Respondent’s alcohol and/or drug use, including contacting the Petitioner. 

The Respondent must follow all recommendations to the satisfaction of the evaluator, including any ongoing AA meetings, if applicable. Parties’ counsel (and the Guardian ad Litem, if applicable) shall receive copies of the evaluation, recommendations, and progress and completion reports.”

Family Reintegration Therapy

Before exercising any residential visitation, including supervised visitation and Facetime calls, the Respondent and the child(ren) must undergo reintegration therapy. It is the Respondent’s responsibility to pay the reintegration therapist’s fees. A copy of the Guardian ad Litem report must be provided to the therapist. 

The respondent’s visitation time with the child(ren) shall begin when the therapist deems it appropriate and in accordance with the therapist’s recommendations, including any gradual reintegration. Any progress and completion reports shall be filed with the court and provided to the parties’ counsel (and the Guardian ad Litem, if applicable).

Supervised Visitation Until All Requirements are Completed

Respondent’s visitation time shall be restricted to supervised visitation and Facetime contact until the chemical assessment(s) have been completed. 

The supervised visitation will take place every Saturday from 12 p.m. to 5 p.m. at a public location to be agreed upon by the parties. The petitioner will be responsible for arranging transportation. If the parties can’t agree on a different person to supervise the respondent, the respondent’s father or mother will do it. Facetime contact will take place on Wednesdays at 7 p.m. Unless the Respondent initiates a Facetime call within fifteen minutes, the Facetime call will be canceled.

As always, if you have questions about what to do in your particular situation, we recommend you contact a family law attorney in your jurisdiction for advice and recommendations.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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