Substance abuse and addiction are common catalysts for divorce. Living with a partner who is abusing drugs or alcohol can take a major emotional and financial toll. This is especially true when children are involved. Sometimes the situation deteriorates to a point where divorce is the most sensible or even the only option.
While much of the divorce process is only tangentially affected by drug and alcohol abuse of one or both parties, said addiction can have a significant impact on the court’s decisions regarding child custody and possession and access (possession and access is Texas’ version of visitation). It can also affect issues such as spousal maintenance or division of community property.
When the tragedy of substance abuse (drugs or alcohol) or addiction – including addiction to legal prescription drugs – breaks apart a family, making sure the children are safe and cared for is paramount. A child custody lawyer at Scroggins Law Group can help you protect your children from the potentially destructive aspects of your spouse’s substance abuse issues.
How Substance Abuse Affects Child Custody Issues
Many aspects of child custody are affected by substance abuse. Specifically, the court must always determine what is in the best interest of the child while protecting her safety and welfare. Then, the court must balance the child’s best interest and her safety and welfare with the presumption that parents are acting in the best interest of the child. Clearly, someone who is active in their addiction while in possession of the child is not in that child’s best interest. So, what is the court to do?
Parenting plans must address parental possession and access while protecting children from the effects of a parent’s substance abuse. This may result in a graduated possession order (step-up plan), the term used when a parent has possession and access of the child that “steps up” over time based on certain requirements being achieved or me. In a situation that a person is suffering from a drug or alcohol addiction, it is common for a parent to have supervised possession for a period of time.
If the parties have not reached an agreement about supervised possession, a judge may order that the parent’s time is supervised. The supervision is usually conducted by a family member, agency, or third party. That supervisor will likely be called as a witness about how the person with the addiction appears and acts during the periods of possession. So, it is incredibly important that the person be sober during such interactions and not allow himself to be provoke by the supervisor or the situation in such a manner that the supervisor would have negative things to tell the judge about said interaction.
It is also common for the judge to order parental abstinence from drinking prior to and during period of possession of the child. The parent may have to undergo drug and alcohol testing for a period of time as well. This testing could include using a breathalyzer or SCRAM devise to check the person’s blood alcohol level at the time of the interaction with the child. The court could also require attendance at a 12 – step program if he/she deems it necessary. Monthly or more drug testing to include hair, urine, toenail or fingernail testing will likely be performed to some extent as well.
So, if a lot of this seems overwhelming, it can be. But it is only temporary. If it is shown the parent does not have a problem despite the allegations to the contrary or has gotten sober and stayed sober, these invasive provisions will be lifted and they can have a lot of time with their kids.
Keep in mind that substance abuse includes marijuana use, which is illegal in Texas. Prescription drugs are also frequently abused. For the former, the court may order hair or fingernail tests to establish a baseline. For the latter, monitoring of prescription drug intake may be needed. Testing can address prescription drugs as well. Please talk to your attorney to learn more about drug and alcohol testing in child custody matters.
Supervised and Unsupervised Possession Time
If a parent does have substance abuse issues and can prove to the court that said problems are under control, that parent will almost always receive some form of unsupervised possession and access. If they demonstrate that they are able to maintain sobriety for a specified period, agreed to by the parties or determined by the court, that parent will be awarded unsupervised possession and access of their child. If that parent were to relapse, it is likely the court will ordersome sort of punitive measure designed to protect the child’s best interest which may include a new drug and alcohol testing regimen and supervised possession for a period of time. Of course, the severity of the relapse with be determinative for the “punishment” for that parent. The best interests of the child are always the top priority, and there are situations where even supervised parental visitation may prove harmful.
If the drinking or drugging led to evidence of family violence within two (2) years from the date of the filing of the laswuit, that information will be taken into account in child custody determinations. Specifically, when there is a finding of a family violence or there has been a conviction for fanily violence, the court cannot name the parties joint managing conservators. The court must name one of the parties sole managing conservators.
How Substance Abuse Affects Divorce Settlements
When children are not involved, substance abuse does not usually have a significant impact on Texas divorce settlements. However, that is not always the case. Much depends upon the behavior of the spouse with the substance abuse problem during the marriage. For instance, if the spouse spent large amounts of money on drugs, or ended up with a gambling issue and financial losses related to their alcohol or drug addiction, the other spouse could claim waste, breach of fiduciary duty or fraud in the divorce proceedings.
Proving Alcoholism or Addiction in Divorce Court
Proving alcoholism or drug abuse is not particularly easy. While he said/she said situations are common, it is imperative to retrieve additional evidence if you seek to maximize the impact of the claim:
You should collect evidence of substance abuse by taking photos or videos of the activities.
While drug dealers do not typically take credit or debit cards, that is not the case with bars or liquor stores. Copy receipts of alcohol purchases, especially if these purchases indicate that your spouse consistently bought a large volume of alcoholic beverages.
You can also look to your bank card or credit card statements to determine how much is being spent on booze. With prescription medications, look at pharmacy records as well as bankcard and credit card statements. All of these can provide circumstantial evidence of addiction.
Perhaps your spouse uses social media and posts comments or photos alluding to some form of substance abuse. Keep an eye out for such posts and copy them.
Third-party eyewitness testimony to your spouse’s excessive drug or alcohol use may also be considered by the court.
Additionally, you may be able to request a court-ordered drug or alcohol test for your spouse, or a psychological or psychiatric examination to demonstrate their addiction issues.
Based on your individual circumstances, your lawyer will advise you on how best to obtain evidence to show the severity of your spouse’s substance abuse problem.
Hire a Child Custody Lawyer
If you or your spouse have issues with substance abuse and you are concerned about your children, you need the services of board certified family lawyers at Scroggins Law Group. Schedule a consultation to discuss your situation so that we can help protect you and your children during this difficult time.