Allegations of substance abuse can play a major role in your child custody case. When deciding on custody matters, the California courts use “the best interests of the child” standard to determine issues such as custody and visitation. One parent may be awarded sole custody of a child if the other parent has an active substance abuse problem. The court is not seeking to punish the parent for their addiction. However, family court judges are very skeptical that those with active substance abuse problems can function as attentive parents. In this article, Wagner Family Law will discuss the role of substance abuse in child custody cases and how the California courts treat substance abuse problems.
Use of Illegal Drugs and California Law
The majority of states have laws in place that handle the issue of substance abuse within the home. Some states consider it child abuse to have drugs present within the family home while there are children there. Most states also have laws that make it a crime to expose children to illegal drug activity. The state can remove the child from the family home if there is evidence of illegal drug abuse.
Health and Safety Code § 11379.7 discusses the manufacture of methamphetamine and phencyclidine and penalties for parents who create labs within their homes. According to the law:
…when the commission or attempted commission of the crime occurs in a structure where any child under age 16 is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of 2 years in the State prison.
Welf. & Inst Code § 300 discusses when a child can be adjudged a dependent child of the court:
Any child who comes within the following description is within the jurisdiction of the juvenile court which may adjudge that child to be a dependent child of the court: The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.
Penal Code § 11165.13 discusses what happens when a child is born addicted to drugs:
A positive toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for reporting child abuse or neglect. However, any indication of maternal substance abuse shall lead to an assessment of the needs of the mother and child pursuant to law.
If other factors are present that indicate risk to a child, then a report shall be made. However, a report based on risk to a child that relates solely to the inability of the parent to provide the child with regular care due to the parent's substance abuse shall be made only to a county welfare or probation department and not to a law enforcement agency.
Why the Law Considers Substance Abuse a Problem for Parents
Substance abuse can impair a parent's ability to provide a safe and stable environment for their children. The parent may neglect their basic needs, expose the child to unsafe situations, or cause emotional or psychological harm to the child.
Children tend to thrive in environments where they feel safe and supported. Substance abuse can compromise a parent's ability to meet their child's needs. The courts believe that children need a consistent routine and emotional support. Both of these can be severely disrupted in a home where substance abuse is present.
How Does a Parent's Substance Abuse Affect Child Custody Decisions?
California courts prioritize the best interests of the children. Substance abuse can significantly impact a parent's ability to care for their child. The court will have concerns about the child's safety and stability, as well as the parent's ability to provide consistent caregiving. Courts thus evaluate the extent to which the substance abuse problem poses a risk to the child and impacts the parenting abilities of the parent.
Are Parents Who Struggle With Substance Abuse Automatically Disqualified From Custody of Children?
No, not necessarily. The courts will only consider active substance abuse, not past substance abuse, when adjudicating cases. Current substance abuse will be considered a major factor, but it does not automatically disqualify a parent from obtaining custody. Courts will consider whether the parent is taking active steps to address and treat their substance abuse problem. This includes participating in treatment programs. A parent who can demonstrate the ability to provide a safe environment for their child will likely be able to take on custody of their children.
What Factors Do the California Courts Consider When Determining Custody?
For a parent who suffers from substance abuse issues, the California courts will consider several factors to determine if the substance abuse will have a negative impact on the raising of the child. These factors include:
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The severity and frequency of the substance use
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Efforts made toward rehabilitation
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The presence of substance-related convictions
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Evidence of child abuse or neglect
The courts must determine that the parent's substance abuse constitutes a significant risk to the child's safety and development. If the court finds there is good cause to do so, it will restrict custody in some cases.
Supervised and Unsupervised Visitation Options
There are two things to bear in mind here. First, just because you have a current substance abuse problem, it doesn't mean that you'll always have one. With the right intervention and help, you can become sober. The courts will revisit the issue of custody when and visitation if it has been denied. Chances are, however, the courts want to ensure that both parents play an active role in the child's life.
The second thing to bear in mind is that the courts will still likely award visitation rights to a parent with an active substance abuse problem. However, the courts may require the visitation to be supervised by a third party for the child's safety. Eventually, the court may see fit to authorize unsupervised visitation if the parent commits to a substance abuse treatment program. These decisions are subject to regular review, so don't despair just because you don't currently have custody of your child.
Talk to a Sacramento, California, Family Law Attorney Today
Wagner Family Law represents the interests of Sacramento-area parents engaged in child custody disputes before the court. Call our office today to schedule an appointment, and we can begin representing your interests right away.
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