Drug and alcohol use and abuse is a serious matter in Texas family courts. In many divorce and family law cases involving children, judges will issue temporary orders to include restrictions or prohibitions against drug and alcohol use. In other cases, one of the parties may bring the substance use/abuse issue to the attention of the court, at which time a judge may order surprise testing which can lead to significant outcomes. At all times the court is required to observe and rule consistently with the best interests of the children involved. The drug or alcohol tested party may also be ordered to bear the expense of testing, which can be significant. In divorces not involving children, drugs and alcohol may be an evidentiary factor in the distribution of income and assets, particularly when divorce grounds are supported by allegations of substance abuse.
Standing orders and temporary orders in divorce and custody cases
North Texas courts including Dallas, Collin and Denton County courts use “standing orders,” which are automatically binding on parties to divorce the moment the case is filed. Standing orders prohibit parties from disrupting disturbing the peace of the children, harassing the other party, and destroying or wasting marital property or funds. If one of the parties to the divorce is a drug or alcohol user or abuse, their conduct could be construed in a variety of ways that may violate the terms of the standing order.
The first time the parties to a divorce or family law action appear in court is often a temporary orders hearing, at which time the judge decides the temporary issues involving who will care for and manage the children, assets and debts. Child support, spousal maintenance and attorney’s fees are also addressed in temporary orders. In a case involving children and a parent who is alleged to be a drug or alcohol user or abuser, the temporary orders may contain provisions regarding the use of drugs or alcohol in connection with possession and access to the children and even drug and alcohol testing. Violations of temporary orders can change the outcome of the final order.
Conservatorship, possession, and access when parents are alleged drug or alcohol users or abusers
Texas family law courts seek to assure that children will have contact with both parents who act in the children’s best interest, and provide safe environments. The court’s primary consideration is always the best interest of children when making determinations of conservatorship and possession and access to children. When the court is presented with evidence of drug or alcohol use or abuse, the substance-affected parent is likely to only receive supervised possession and access to children. This could be the nature of the temporary orders, or a modification of them as necessary.
If temporary orders require a parent alleged to use or abuse drugs or alcohol, to submit to regular or surprise random testing, a failed test result can and usually will result in the court ordering supervised possession and access. Additionally, the court can order a party to attend Alcoholics Anonymous, Narcotics Anonymous, and substance abuse evaluation and education. In addition, temporary or surprise random substance testing may be ordered, with a variety in frequency and duration, which can involve years and hundreds or thousands of dollars to be paid by the party ordered to submit to tests.
An example of random drug testing and a change in direction of a divorce or family law case
An example of court-ordered drug or alcohol testing can involve the following scenario: Mother calls her attorney to report father had the kids and was on a drinking binge over the weekend, as she saw on Facebook and heard from others. The parties have a Monday morning court date. Mother’s attorney informs the judge that there is reason to believe father violated the court’s order not to drink alcohol during periods of possession and access during the pending divorce proceeding. The judge can immediately order the bailiff to take the father to submit to a urine analysis test, and if he fails, the court can immediately change the temporary orders to restrict father’s access to the children and require supervision. In doing so, the court may set the details of supervised possession and access, including the location and the identity of the supervisor and any fees and costs associated with either.
Fault ground divorces and allegations of drug or alcohol use or abuse
While Texas, like most states, includes a no-fault grounds divorce, Texas law allows parties to allege fault-based grounds for divorce, including physical, mental or emotional cruelty, which can be based on a drug or alcohol addiction and allegations of abuse in connection therewith. The party filing for divorce based on fault grounds may be entitled to receive a larger share of the community property assets, when the divorce is the fault of the party using or abusing drugs or alcohol.
Drug and alcohol testing, analysis, and impact in divorce and family law
Many options are available for spouses and parents affected by a drug or alcohol user or abuser. The substance tests range from urine analysis, which can detect substances for the past several days, to hair, and fingernail analysis, which can detect the use of drugs well over a month’s time. Hair and fingernail testing may be more expensive, but the technology involved can detect evidence of “harder” drug use.
Drug or alcohol use or abuse can affect a parent’s ability to act in the best interest of children and may endanger their safety. A parent with substance abuse or addiction might not intend to act as a bad parent; their judgment abilities, when inhibited by substances, get in the way of good parenting. Anyone considering divorce, especially involving children, when substance abuse plays a role, is well advised to seek the advice and counsel of an experienced family law attorney.
Collin County Board Certified divorce and family law attorney, Mark Scroggins, along with their team at Scroggins Law Group can advise and represent men and women ready to make difficult but positive changes affecting them and their families.
At Scroggins Law Group, our Collin County divorce attorneys have more than over 24 years of collective experience with family law cases. When you retain our firm, you can trust that your case is in the hands of a highly skilled, dedicated professional. we understand the unique challenges of a high value divorce case, and more importantly, have the knowledge and experience you need on your side. Call us today, (214) 469-3100, to learn more about Texas divorce and family law.
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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)
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