Legal Blog

How to Get Custody When Parents Use Drugs

21 March 2022 | Family Law,  

Attorney Sean Hessler

Written by
Sean Hessler

21 March 2022

Family Law,  

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You want your child to be safe and happy. You want to feel secure and confident that your child’s welfare won’t be an issue when they spend time with the other parent.

If substance abuse is part of that person’s life, it can cast a deep, dark shadow on what should be a loving time with the other parent. Substance abuse may be a new issue for the person or a longstanding problem that the other parent can’t shake. No matter the situation, your child’s welfare is your paramount concern.

What is Custody?

There are two types of custody:

  • Legal custody: This can be awarded to one or both parents, depending on what’s in the best interests of the child, including critical issues like religion, education, and healthcare. Sole legal custody means decisions can be made without consulting the other parent. Joint legal custody means parents must work together.
  • Physical custody: This can also be divided between both parents or be given primarily to one parent. Joint physical custody need not be equal. Ideally, the parents will work out reasonable solutions regarding who will spend how much time with the child.

If a parent doesn’t have legal or physical custody, unless they abandon the child, that parent is normally given visitation rights. Or, they may have the ability to spend time with his or her child. If it’s believed the parent can’t responsibly supervise the child, the visitation can be supervised by a court-appointed social worker or a trusted family member or friend.

Navigating Custody and Substance Abuse

You may be formalizing the custody arrangement, and substance abuse is an issue at the start of the process, or it may rear its ugly head after a custody order was issued. Either way, the first step is to try to negotiate with the other person a path to ensure your child’s welfare.

Ideally, the other parent understands the problem and is willing to undergo treatment. If that’s the case, supervised visitation is a step to maintain parental ties while keeping your child safe. If, in the future, the parent has taken control of the situation, is sober, willing, and able to be responsible, the two of you could talk about a more permanent custody agreement.

Depending on the parents, a child custody or visitation agreement may be very difficult or impossible to work out even in the best of times. If one parent is abusing alcohol or drugs and is in denial about the situation, an agreement can be that much harder to reach.

What a Court May Decide and Why

The courts will always act in the best interests of the child. If an agreement can’t be worked out, there will be hearings to determine what kind of custody or visitation arrangement would be in the best interests of your child.

The factors used to make that decision include:

  • The age and sex of the child
  • The wishes of the parents
  • What the child wants, especially if he or she is at least 14 years of age
  • The interactions and interrelationship between the child and the parents, siblings, and others who impact the child’s best interests
  • How well the child adjusts to the home, school, and community
  • The mental and physical health of those involved
  • Evidence of domestic or family violence

If substance abuse is an issue, the court will likely take action if it impacts the parent’s ability to care for the child, or he or she poses a danger to the children’s well-being. If one parent accuses the other of substance abuse, the judge should investigate the issue to decide if the claims are accurate and, if so, the impact on his or her ability to properly care for the child.

The judge’s job is to decide what course of action will be in the best interests of the child. This takes into account each parent’s fitness, including alcohol and/or drug use. If there’s a history of substance abuse, the judge will probably look at what happened during that time before making a custody decision.

If there’s a custody order in place and allegations of substance abuse arise, the judge may restrict the parent’s contact with the child by changing the order. Supervised visitation may be ordered if there’s credible evidence to back up the claims so the parent can still see his or her child but in a safe and controlled setting.

What to Do if You Suspect Drug Use

Evidence of suspected drug use can be police reports, DUI charges, and other arrests made due to the person’s addiction or substance abuse, including possession or selling illegal drugs, disorderly conduct, assault, battery, or vagrancy. Incidents that support your concerns should be documented, witnesses should be interviewed, and they may testify in court.

The fact the other parent became unemployed or injured him or herself while intoxicated, or is in active treatment, can also be used.

If you legitimately believe there’s a threat to your child’s safety because of the other parent, a restraining order or refusing visitation with the other parent may be justified. Fear that your child could be harmed is a valid reason to refuse visitation and demonstrates your legitimate concerns.

What to Do if You’re a Parent Accused of Drug Abuse

If you are a parent accused of drug abuse and have concerns that a family member will attempt to take custody of your child, it is important that you take steps to protect your child and your future. You must get clean and get the help you need if you are a drug user.

A simple drug test will determine whether you are abusing drugs, but if you can show the courts that you have taken steps to stop drug use, remain sober, and better your life for yourself and your children, you could avoid having your custody rights taken.

How to Protect a Family Member from a Parent’s Drug Abuse

Grandparents or other family members might want custody of their drug-abusing relative’s child. In these cases, you will need legal help.

Our child custody lawyers can help you exercise your grandparent’s rights or obtain legal guardianship of a child at risk of injury or illness due to their parent’s substance abuse.

Be sure to obtain evidence that can be used to support your case, including photos, videos, witness statements, medical records, and anything else that shows the court that it would be in the child’s best interest for you to be granted custody.

How Hessler Law PC Can Help

We have helped many parents deal with challenging and highly personal custody issues, and we understand what you’re going through. Experienced Indiana child custody lawyer Sean Hessler knows how our local courts handle custody disputes, and our team can help you through every step going forward.

To speak with an Indianapolis family lawyer about your child’s custody status, contact Hessler Law today at (317) 886-8800 to schedule a free consultation.