Alcohol, Drugs and Custody

When California Family Law courts are called upon to decide child custody and visitation disputes, they are told in Family Code Section 3010 that parents are equally entitled to custody. However, they are also told that in making custody and visitation orders, the court’s primary concern is the “best interest of the children.” Family Code Section 3020.

In deciding the children’s best interest, the Family Code lists factors that the court must consider. Family Code Section 3011. Among these factors are “the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent.” The policy behind this provision is that use of an illegal substance exposes the children to a crime and possibly other illegal activities. In addition, the abuse often means that a parent does not have the judgment and critical thinking skills necessary to parent.

Section 3011 further provides that “before considering these allegations the court may first require independent corroboration including, but not limited to, written reports from various public agencies. Evidence that a client wishes to use in this regard may be inadmissible hearsay especially if it comes in the form of an opinion from an expert. See People vs. Sanchez 63 Cal.4th 655.

Other evidence of use/abuse of substances routinely considered by courts in custody cases include declarations or live testimony, a party’s admission of substance use/abuse, testimony of third party witnesses and criminal convictions within the past 5 years for the illegal use of alcohol or drugs.

If the judge finds that use/abuse of a substance is true, then, if the court allows the accused parent visitation with the child the judge must detail its reasons for the order and tailor the order to protect the children. Orders may include a prohibition against transporting the child, daytime parenting only, parent-child contact only in public places, supervision by a professional supervisor, random testing or the use of a personal alcohol detection mechanism.

Under Family Code Section 3041.5, the court may order a party to undergo drugs/alcohol testing in a child custody matter. However, before ordering testing, the court must determine that the party being tested habitually, frequently or continually uses illegal controlled substances or abuses alcohol.

In conclusion, parents have a right to parent their children. However, a parent’s addiction and/or substance abuse may put significant limitations on the parent’s time with their children. As with all of our blogs, this is general information and is not intended to be legal advice regarding any particular case. When a parent has a disputed custody matter they should consult with family law attorney.

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