drug use

Drug use, alcohol use, addition, and child custody – can a parent who uses drugs get custody of the child? Parents in the thick of a child custody proceeding are no doubt concerned about the well-being of their child. Usually, they want what is best for the children. In North Carolina, the Court uses a best interest of the child standard to determine custody arrangements. Just about everything is considered when making a determination especially the behavior and living situations of the parents.

In this blog, we will talk about drug use. It is a topic that is brought up by many of our clients, but there are a lot of misconceptions about it. This blog is intended to provide some information only, not to render any legal advice and certainly not substitute the advice and counsel of a family law attorney.

Drug use or drug addiction is not an automatic bar

Many clients have expressed sentiments such as, “ ‘well he does drugs’, or ‘he’s an alcoholic’, so he can’t have custody.”  On its own, that is not true.  In making an argument that a parent’s drug use necessitates limited and/or supervised visitation, a parent must provide certain evidence. Courts look at the totality of the circumstances and how specific behavior has an impact on the well-being of a child. Below are some examples to consider:

Example 1:

Mother alleges that father is a recreational user of cocaine.  There is no evidence that father has ever been intoxicated in front of the child, he does not have a history of any violent, erratic or negligent behavior.  Father doesn’t neglect the child and otherwise seems to be a loving a dedicated father.

In this case even if a judge believed that the father is a recreational cocaine user, there would still need to be some nexus between the drug use and some negative interaction with his child. Without that, the judge would likely not be inclined to use this against him in a custody proceeding since it does not directly impact the child and therefore is not relevant to a best interest of the child determination.

Example 2:

Father has not been in his daughter’s life for the last two years because he was addicted to drugs.  During that time, he went to rehab, and got himself cleaned up.  For the last year he has been trying to be an active parent, and getting his daughter for every other weekend and there hasn’t been any problems. He has been staying clean, and he just moved into a new home with a roommate. A child custody action is filed and mother is attempting to limit him greatly because of his past. 

In this case, the judge is not going to hold his addiction against him just for the sake of penalizing addiction. To the extend possible, the court typically wants both parents in the child’s life as much as possible.  In this case, there is no evidence of danger to the child, current neglect of the child, or anything else that might negatively impact the well being of the child. The past behavior has been remedied and is not a currently affecting the child. In this case, there is no nexus between the drug use/addiction and the care of the child. Had this custody trial taken place while the father was in active addiction and neglecting the child, then the analysis would be different.

We often have to tell our clients that in a child custody action, everything is considered but not everything matters as much as you might think.

Criminal Record and Custody

In another blog, we talk about how a criminal record may impact a child custody proceeding.

If you are in need of legal representation for your North Carolina child custody case,  contact us.

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