“Who gets the children?” is a tough question all its own, but custodial determination can get even trickier when parental substance abuse is part of the equation. Ultimately, custodial and visitation rights come down to whatever is in the child’s best interest. It’s no surprise then that drug abuse and addiction are viewed unfavorably by courtrooms as the very nature of drug use puts one’s general fitness as a guardian into doubt. However, addiction doesn’t automatically make someone ineligible for access to the child. How addiction affects child custody (and how it’s handled by courtrooms) can vary depending on the type of custody being sought, the state you’re in, and most importantly, the best interest of the child–a phrase that will turn up over and over again in family law.

What “Best Interests of the Child” Means

There’s a lot of “it depends” when it comes to determining how addiction can affect child custody–an answer that can be frustrating and as unhelpful (if not worse) than having no answer at all. The key to demystifying the complexities of child custody hearings is to understand the purpose of all the proceedings, court orders, and litigation that occur. These proceedings are meant to determine which (if not both) parents/guardians can offer an environment that promotes the child’s best interests. 

Factors That Determine A Child’s Best Interests

  • Age: A 17-year-old and a 17 month-year-old will have vastly different needs in a guardian. Courts typically favor the current primary caregiver when it comes to the custody of young children. 
  • Minimal Disruption: An important part of maintaining a child’s well-being is minimizing the disruption to their lives and as such, favors those who can keep the child’s routine as consistent as possible. This includes the living arrangement, the school they attend and after-school routines, and access to loved ones.
  • Parental Fitness: How capable are the adults in question at meeting the child’s physical and emotional needs?
  • Preference: If the ward is old enough to verbalize a preference for their potential guardian, this is also something courts take heavy consideration 
  • Safety: The most important of all factors. Courts will not grant custody to those whose lifestyles or personal behavior they believe could comprise the child’s safety.

The individual’s ability to meet these conditions can further affect the type of custody or visitation rights they are granted. However, circumstances like an addiction that can actively go against a child’s best interests, will also be taken into consideration.

Child Custody Considerations: How the Court Views Unfavorable Circumstances

The most important factors that determine who the primary caretaker will be are 1) who does the majority of the child care tasks (bathing, preparing meals, makes health care decisions, helps with school, etc.)  and 2) who has the closest emotional bond with the parent. Addiction is known to be an all-consuming disease that leaves time and money for little else and as such., can be severely damaging to one’s chance of being declared the primary caretaker.

Current vs. Past Drug Abuse

When drug abuse is brought up in a child custody hearing, the judge will likely examine the scope of it and whether it is an ongoing issue (especially if the other party states that there has been a history of substance abuse). The court may order periodic drug and alcohol testing to demonstrate a history of tests as proof. For an addict, this small formality can be the first of many that weaken their case. 

When substance abuse is disclosed, it can go two ways in the courtroom. If the drug abuse is part of present behavior, the judge will want to see that the person can demonstrate sobriety and if they’re making an effort to get clean. If the instances of substance abuse or addiction were in the past, however, the judge will want proof of the steps the individual has taken to commit to a drug-free lifestyle (attend 12 Step meetings, enrolled in a rehab, hold Suboxone prescription, etc.) and prevent relapse. With sufficient proof, previous drug addiction won’t have much of an effect on the child custody case at hand. 

Mental Illness & Criminal Records

Psychiatric disorders and brush-ins with the law can trail close behind addiction, adding to the complex web that is child custody. There are no hard and fast rules that either of the two immediately disqualifies someone for child custody, however, they can make it harder to prove that an adult can adequately provide a stable and loving environment for a child.

Mental illness, a common affliction that affects nearly 1 out of every 5 Americans, is not an automatic deal-breaker. As long as the mental condition doesn’t pose a threat to the child’s wellbeing or interfere with one’s ability to prompt the child’s best interests, that alone will not cause the loss of custody rights.

In the case of criminal history, recency as well as the severity and nature of the crime(s) will impact the judge’s decision. In most cases, as long as the type of crime doesn’t endanger the child, courts are likely to be more lenient. A charge of petty theft, a misdemeanor, over two decades ago will have far less of an impact than that of a convicted arson felony charged a year ago (granted that there have been no subsequent offenses since then). 

As such, many of these cases are up to the judge’s distinction but it is certainly possible that a parent (or guardian) with a criminal record can win custody. Note that there are certain types of crimes that almost always guarantee that one is denied any form of custody. They can vary by state, but most include any type of domestic violence or sexual assault towards the parent or child, as well as any other form of child abuse such as maltreatment or neglect.

Different Types of Child Custody

Fortunately, child custody isn’t a black and white matter. Individuals who have (or are currently) battling drug addiction, have been diagnosed with a mental illness, or have a criminal history can still have some involvement in their child’s lives even if they’re not declared as the primary caregiver.

Legal Custody vs Physical Custody

Physical custody, the more commonly known of the two, is the type of custody that determines where the child physically lives. Legal custody may not provide physical proximity to the child but instead gives the adult the right to make decisions about how the child is raised. This includes medical care, the child’s education, religious involvement, etc. 

Joint Custody

Joint custody is when both parents share responsibility for the child. There can be both joint legal and physical custody. A separated couple can share both types of custody or just one or the other. It is common for both parents to have decision-making rights to be awarded to both parents, a condition called joint legal custody. Joint physical custody is when the child splits their time between residences of each guardian.  

Sole Custody

Should one parent be considered unfit in any way, the other adult can be awarded sole legal custody. In this scenario, they’ll have complete control over all decisions about child care and do not need to consult with the other parent. Sole legal custody involves the child living full time at one residence. 

Visitation Rights

Drug use and addiction can heavily influence how involved a parent can be in their child’s life in the eyes of the court. Fortunately, family courts tend to prioritize familial relationships so all hope is not lost for someone with a checkered past. In cases where the individual is deemed unfit to have legal or physical custody, the non-custodial adult can still see and interact with their child via visitation rights. Visitation schedules can vary depending on the relationship between the parents (or guardians) in question. In instances where one party doesn’t cooperate with the other, the court might order a fixed visitation schedule. If there is addiction or past instances of abuse in the mix, the court could further require that all visitation is supervised.

How To Approach Child Custody Hearings As An Addict

When it comes to current drug abuse and addiction, there is little wiggle room when it comes to child custody. With the child’s best interests and well-being at the forefront of the judge’s decision-making, it seriously jeopardizes the odds that one might retain custody of the child. However, there are a number of steps that can be taken to remedy the situation and cast a more favorable light on the circumstances in family court. 

The most meaningful one is to begin the process towards sobriety. This means enrolling in an addiction center or attending a 12-step based program. Next, is to show the custodial parent and judge that you are committed to being a positive force in the child’s life. This means being reliable and communicative, and if possible, having a cordial relationship with the other parent. These actions can go a long way towards greater visitation rights as well as greater involvement with major decisions. 

Child custody can be a particularly harrowing experience for a drug addict, however, it has the potential to be a catalyst for a life-saving change. If you are ready to get sober for the sake of your family, a drug & alcohol rehab directory will help you take the first step.