According to the National Institute of Mental Health, “A substance use disorder (SUD) is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as legal or illegal drugs, alcohol, or medications. Symptoms can range from moderate to severe, with addiction being the most severe form of SUDs.”[1] When a parent has a SUD, the parent-child dynamic is always affected to some degree.

In fact, research studies indicate that the children in these situations have an “ elevated risk that children of substance abusing parents face in general for poorer academic functioning; emotional, behavioral, and social problems; and an earlier onset of substance use, faster acceleration in substance use patterns, and higher rates of alcohol and drug use disorders.”[2]

So, obviously, this is an important issue in child custody cases, with or without an accompanying divorce. What are some of the ways that courts address these situations? That is the subject of today’ blog post.

Protecting children from the adverse effects discussed above is the primary goal of the courts in these situations. And, it should be the primary goal of both parents. The issue that typically arises first is a recognition of the problem by both parents. The parent having the SDU often will not recognize that his/her substance abuse is, indeed, a problem for the children. That parent may defensively opine that the “real problem” is with the other parent, who is “too uptight,” or who “just needs to relax (or chill).”

If that SUD remains unrecognized by that parent, then a court order will, likely, be required, to put into place protective measures. Those measures may include: limiting the possession (“visitation”) time of the parent abusing the substance(s). If, for example, that parent has a habit of drinking alcohol in excess during the evening and night hours, then his or her right to possession of the children may be limited to daytime hours. Or, if a parent smokes marijuana on weekends, then his or her possession rights may be limited to just weekday periods. Texas courts have broad authority, and indeed, an express duty, to enter orders that both protect children, and that are in the best interest of those children who come before them.

In the case where the parent having the SUD apparently addresses the problem, by refraining from using those substances previously abused by him or her, the other parent and the court may want to be able to confirm that the person is remaining clean and sober. And so, drug tests may be ordered.[3] If the substance being abused was alcohol, then the court may order that the parent with the problem subscribe to a service that provides a pocket-sized alcohol testing device. Times can be set for testing, such as: 30 minutes prior to the beginning of the parent’s possession period; 2 hours after the possession period begins; early the next morning (if the visit is overnight). Additionally, the right to random testing requests by the other parent may be ordered.

The goal of providing structure to these possession periods is not to “punish” a parent. Instead, it is to work towards providing a safer environment for children. After all, isn’t that the most important issue?

Until next time, keep on loving the kids in your life!





[3] Urine, hair, and nail tests are currently used in the jurisdictions where I practice law. This series of tests gives a broad picture of use, both recently and over the course of the past few months.

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