Substance Abuse Issues and Child Custody Decisions

Substance Abuse Issues and Child Custody Decisions

Posted By Owenby Law, P.A. || 27-Feb-2015

Often in family law cases involving children, one party may make allegations of substance abuse by the other party. Unfortunately, in many cases these allegations are unfounded and merely an attempt by one party to gain favor and or gain custody (majority time-sharing) with the minor child or children. Regardless, the Court is obligated to investigate the allegations on behalf of the minor child or children. If the Court were to ignore the allegations, then the minor child or children may be placed in harm's way, and unfortunately, the Courts often are not provided enough information to truly gauge whether or not the allegations are unfounded or not without investigating further.

Generally, the first step the Court takes is to require both parties to submit to a drug screen. Regardless of which party made the allegations, the Court will generally require both to submit to the screen, as it is only fair to require the accuser to take the same test as well. The Court will determine, on a case by case basis, the type of drug screen (how extensive), whether to require a urinalysis or hair follicle screen and how much time the parties have to submit to such. The Court may provide 24 or 48 hours, 3 to 5 days, or may require the parties to submit to a urinalysis in the Courthouse immediately following the hearing on the issue. The parties are generally required to cover the costs for his or her drug screen. The results are provided to the Court, attorneys for the parties, or directly to the party if he or she is unrepresented.

The drug screen results, however, are only one factor which the Court will consider in such situations. Even if one party tests positive for the substance at issue, there must be evidence of imminent harm to the minor child or children involved as a result of said substance abuse in order for there to be modification or change in the current custody or time-sharing arrangement. For instance in Birstwistlev. Birstwistle, 377 So.2d 54 (Fla. 1st DCA 1979), the Court awarded custody of a minor child to the mother even though the Court found both parents to be alcoholics and the Father had submitted to a treatment program while the Mother refused to submit to said treatment. The Appellate Court determined that the trial court had not abused its discretion by ruling this way, but that future alcohol abuse by the Mother, if it affects the minor child, could be considered for purposes of modification. Thus, the substance abuse alone is insufficient to modify or change custody.

However, if there is a sufficient link shown between the substance abuse and harm to the minor child or children, this will be considered a sufficient change in circumstances by which custody or time-sharing may be modified. In Sullivan v. Sullivan, 736 So.2d 103 (Fla. 4th DCA 1999), the Court found that the mother (who was the majority time-sharer or custodial parent) was unsettled with problems including depression and prescription drug use which interfered with her ability to care for the parties' minor child. In that particular case, the mother moved frequently, was often involved in abusive relationships, and abused prescription drugs to the extent she had to be hospitalized, all of which the minor child was exposed to by the Mother. Evidence of the change in the minor child, including changes in her personality, was also offered to the Court to indicate the effect on the minor child. Therefore, when there is substance abuse by one party which effects the minor child or children involved, this is sufficient basis to modify custody or time-sharing in Florida.

Another investigative tool the Court may utilize is a social investigator or investigator to provide a parenting plan or time-sharing recommendation to the Court. This is usually done at the cost of the parties and the cost can vary depending the investigator appointed. In some cases, the Court may require a psychologist to be appointed and in others there are attorneys authorized to do said investigations. This investigator will meet with each party in his or her home and possible in their office, meet with the child or children involved, observe the child or children in each party's home and will also speak with third parties as requested by the parties involved in the case. (Some investigators limit the number of third parties each side can provide to limit the expense and time required for the investigation.) The investigator then creates a report and recommendation which is submitted to the attorneys for the parties and may or may not be submitted to the Court.

Any time a party has concerns regarding substance abuse by the opposing party, however, he or she should bring those concerns to light to insure that the best interests of the minor child or children are met. The safety and welfare of the minor child or children are the primary concern and regardless of how a party feels about reporting said issues, not doing so may be detrimental to the minor child or children. Conversely, a party should never make said allegations if he or she knows said allegations are completely false or he or she does not have a valid basis for making these allegations.

Categories: Family Law
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