Substance Use Disorder (SUD) is a major factor in child custody cases – and trying to prove substance abuse in court isn’t always a straightforward process.
SUD is often completely disabling and – at least to an extent and at least in the minds of many – this disability is self-inflicted. Furthermore, and like other disabilities, SUD and its companion, alcohol use disorder (AUD), could directly and seriously adversely affect children.1
Most states require judges to consider a number of other factors when determining the best interests of a child, such as the child’s preference, the caregiver’s preference, any history of verbal or other abuse, and perhaps most importantly, the status quo.2
Everyone, including a family law judge, likes a good comeback story.
Bret Thurman, J.D.
Now, many divorcing parents have been separated for months or years, and as such, follow an informal parenting time plan.
As they say: The devil you know is better than the devil you don’t know. So, there’s a strong presumption that keeping the current, informal system in place – even if this system is flawed – is better than upsetting the system and trying something completely different.
But substance abuse can overturn this presumption. If Mom proves that Dad struggles with SUD and that it affects the best interests of their child, Dad’s prospects for obtaining custody become very dim. Dad’s prospects for obtaining full parenting timeshare rights aren’t much better.
However, everyone, including a family law judge, likes a good comeback story. If Dad is self-aware and proactively deals with his SUD, that disorder could be an advantage instead of a disadvantage.
This post covers these topics in depth.
Burden of proof in divorce court: The paper analogy
First, let’s take a step back and examine the burden of proof in civil court, which is a preponderance of the evidence: meaning the plaintiff has to show that their claim is more likely true than not. This standard is much lower than the standard of proof in criminal court, which is beyond any reasonable doubt.
A lot of people, including lawyers, compare preponderance of the evidence to the scales of justice. But it’s actually more precise than that.
Imagine you have two stacks of paper side by side, with the same number of sheets in each. If you move just one thin sheet of paper from the left stack to the right, the right stack is now slightly taller.
That tiny difference is what preponderance of the evidence means – just a little more proof on one side than the other, which can make all the difference.
On a related note: Pretrial evidence collection techniques are also different in civil court. Assume Dad calls a friend and plans a night of drinking, and Mom eavesdrops on that conversation.
Now, in criminal court, Mom’s testimony about that phone call would probably be inadmissible, if Dad had a reasonable expectation of privacy during that call.
However, in divorce court, Mom’s testimony would probably be admissible, based on my experience. It’s noteworthy that, since Mom might now look like a snoop, her testimony may not be effective and may even backfire.
Proving substance abuse in divorce cases: 4 types of evidence
To prove or disprove substance abuse in court, four kinds of evidence are usually admissible. Since the burden of proof is so low in divorce court, substantial evidence in one area is probably enough to prove or disprove this point.
1. Physical Evidence
Open containers of alcohol, an odor of marijuana, and open pill bottles are probably the most common examples of physical SUD evidence in divorce cases.
But this kind of physical evidence isn’t very common in divorce cases. People rarely use these things when they pick up or drop off their children.
To give you an example: If Mom says she saw open pill bottles or alcohol at Dad’s house, her statement might not be allowed as evidence because of the “best evidence rule.” According to this rule, the actual bottles or alcohol containers would be the best evidence – not just what Mom says she saw.
It’s more common for people to present observable physical symptoms of substance use in divorce cases. Such physical symptoms include:
- Bloodshot eyes
- Odor of alcohol or drugs (i.e. marijuana)
- Unsteady balance
- Slow reflexes
- Poor judgment
Individually, these symptoms prove substance use – not necessarily substance use disorder. But the whole is greater than the sum of the parts, especially since the burden of proof is so low in divorce court.
2. Electronic evidence
Breathalyzer tests may be one of the most conclusive bits of evidence in SUD – particularly alcohol abuse. These electronically-saved test results are usually conclusive proof of excessive alcohol use.
A home breathalyzer, such as a smartphone breathalyzer, may be the best way to disprove alcohol use disorder in court.
To continue with our example: If Dad takes three or four tests a week and they all show a minimal or zero BAC, it’s almost impossible for Mom to prove Dad has SUD, no matter how much evidence she marshals from the other three categories.
These gadgets are wonderful tools in many contexts. In a custody case, they demonstrate self-awareness and the subject’s desire to be sober during parenting time.
3. Eyewitness testimony
This testimony often backs up the physical symptom evidence discussed above. Third party testimony often carries more weight than party testimony.
In my experience as an attorney, I’ve observed that something almost “mystical” happens when disinterested third parties – people with no meaningful relationship with the plaintiff or defendant – take the stand, swear to tell the truth, and recount what they saw.
However, while a good eyewitness can make a case… a bad eyewitness can break a case. If Mom calls an eyewitness who has a hidden motive or is not credible, Mom looks like a desperate actor who’s trying to smear Dad’s name.
4. Scientific evidence
Scientific evidence could take the form of testimony from an expert witness or an excerpt from a learned treatise on the subject of SUD.
Expert witnesses review the evidence in the case and express their expert opinions on a subject. Different states have different standards for who qualifies as an “expert” and what opinions that person can express. Learned treatises often dispel the myth that Dad is a “drunk” or a “pothead.”
The impact of substance abuse on child custody
We mentioned the three primary impacts of substance abuse on child custody cases above, assuming a party proves substance abuse affects the best interests of the child. Now, let’s break these impacts down in more detail.
Substance abuse and domestic abuse may be the two “silver bullets” in child custody cases. These two issues often lead to CPS referrals.
Therefore, no judge would grant child custody to a person with substance abuse or domestic abuse issues. If the caregiver gets help and overcomes these disabilities, the judge may revisit child custody (more on that below).
Supervised visitation is very common in extreme SUD situations, and it usually takes place at a CPS-run facility. If the visiting parent shows any of the previously-mentioned physical signs of substance use, the staff at these facilities often has the power to cancel visitation.
Unsupervised visitation may be available in SUD cases, but on a limited basis. Overnight visits are probably not an option. Additionally, the judge will probably prohibit the caregiver from driving with children.
Plus, I’ve seen that many judges believe that where there’s smoke, there’s fire. For example, if Dad isn’t home at 7:00 p.m. when visitation is scheduled to begin, Mom may be able to leave without waiting for Dad, even if Dad was simply stuck in traffic.
Substance abuse and custody modifications
A person suffering or recovering from of AUD, SUD, or any other disability might be the most common reason for modifying a parenting time or custody plan.
If Dad gets help for an alcohol abuse problem and can prove he isn’t drinking (a home breathalyzer is a critical tool in this situation), the judge will most likely move Dad up one level, such as from supervised visitation to limited unsupervised visitation.
Most states have co-parenting laws which presume that children benefit when they spend a meaningful and consistent amount of time with each parent.
The opposite is also true. If Mom develops an alcohol or substance problem, Dad can prove it as outlined above, and that substance abuse issue affects the best interests of the child, the judge may move Mom down one level of access to their child.
Proof of adverse effects includes poor school attendance, low grades, physical injuries, social withdrawal, and mood changes.
The bottom line
Substance abuse is a serious issue in child custody cases, but proving it in court requires solid evidence that it affects the child’s best interests.
Parents facing these allegations can turn the tide by proactively addressing their substance use issues, proving their sobriety, and demonstrating a commitment to responsible parenting.
Because no matter why you’re trying to prove (or disprove) substance abuse – whether you’re seeking custody or defending your rights – understanding how courts evaluate this evidence is critical.
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