Drug or alcohol addiction or use disorder can substantially impact an entire family in long term and unpredictable ways. Its impact on child custody cases may depend upon the age of the children and extent of the abuse, as well as other factors that must be considered by the court when making a child custody determination. This blog explores the impact of drug and alcohol abuse on child custody cases in Indiana.
Custody determinations are made under the custody order statute which provides that there shall be no presumption in favor of other parent and that the determination will be made according to the best interests of the child (I.C. 31-17-2-8). To determine what the best interests of the child are, the court will consider the factors included in the statute, as well as any other factor that is relevant to the child’s well-being. The statutory factors include, but are not limited to, the child’s adjustment to his or her home, school, and community, the child’s wishes, with more weight given to children who are at least 14 years old, evidence of a pattern of domestic violence, and the physical and mental health of all parties. While minor drug or alcohol use may not affect any of these factors in a negative way, severe addiction or use disorder may cause a parent to neglect the child’s basic needs or even become abusive. This could result in the child’s maladjustment to the addicted parent’s home, the child wanting to live with the other parent, poor decision making on the part of the parent with the substance use disorder, and some physical and mental health issues as a result of the addiction. When considering the statutory factors, a court would likely award custody to the other parent.
A non-custodial parent will be granted reasonable parenting time unless the court finds that parenting time may endanger the child’s physical health or significantly impair his or her emotional development (I.C. 31-17-4-1). If the court makes such a finding due to a parents drug or alcohol use, it may order a parent to complete drug or alcohol treatment or to exercise only supervised visitation for a certain period of time. Supervised parenting time may be conducted in the non-custodial parent’s home with a third party supervisor, agreed to by the parties or selected by the judge from lists submitted by each party, or at another location, such as a parenting time center organized and operated by a non-profit organization, with a staff member supervising the parenting time. When a parent has a history of drug abuse and is likely to be using illegal drugs at the moment, the court may also require that the parent submit to drug testing before exercising parenting time rights (I.C. 31-17-2-21.8). Alcoholism or abuse of alcohol may be more difficult for a party to prove, absent a significant history of OWI and/or public intoxication convictions. This is because alcohol is legal to drink and drinking it in front of your child is not a reason for loss of custody or parenting time. So a parent having alcohol in their system is not enough for a court to order supervised or no parenting time or to award custody of the child to the other parent.
In some custody cases, one parent accuses the other of drug or alcohol abuse and asks the court for primary physical custody, sole legal custody, and may request no parenting time or supervised parenting time. When these allegations are false, the parent accused of substance abuse may find it very difficult to prove that they are not abusing any type of substance. In this situation, as well as in situations where a parent needs to prove that the other parent is abusing substances, it may be best to request a Guardian Ad Litem or a court appointed special advocate, or CASA. A guardian ad litem is an attorney or an employee or volunteer of a county program appointed by the court to represent the best interests of the child in a custody dispute (I.C. 31-9-2-50). A CASA is a volunteer who represents the best interests of the child in much the same was a guardian ad litem, or GAL (I.C. 31-9-2-28). Each may investigate and prepare reports for the court by talking to anyone who might have information about the child’s best interests or be a significant part of the child’s life, interviewing the child, and collecting documents and records from the child’s school or healthcare providers. A GAL or CASA preparing such an investigation or report will then usually testify about the information obtained and any recommendations made, and may call witnesses to present evidence regarding their report (I.C. 31-17-6-6).
Parents suffering from moderate to severe substance use disorders should seek professional help instead of litigating the issue and forcing a court to order that they complete a treatment program before being awarded any parenting time with their children. Those who have been falsely accused of drug or alcohol abuse or who need to prove that their child’s other parent has a substance use disorder may need to consult with an experienced attorney to help protect their rights and keep their child safe.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
