Substance Abuse and Custody Decisions

Substance Abuse and Custody Decisions:
California Considerations and Best Practices

By: Jillian Duggan-Herd & Shannon Miles, AAML, Cage & Milesi

When a parent struggles with substance use, it can have a profound impact on custody decisions. Courts often consider whether a parent’s substance use poses a substantial risk of harm to the child, with the outcomes varying widely. In some cases, the court may recommend removal of the child from the parent’s custody, modify existing custody arrangements temporarily, or even terminate reunification services in juvenile dependency proceedings. These decisions are often deeply emotional for our clients, and it’s our responsibility to guide them—help them understand what to expect, how to take proactive steps, and how to present the strongest possible case in their favor.

The first and most crucial step is accurately identifying substance use concerns. While clear red flags like DUI arrests or failed drug tests may stand out, more subtle indicators require careful attention. For example, clients or opposing parties who give inconsistent or evasive responses about their substance use history, show unexplained gaps in employment or education, or display financial irregularities may warrant a closer look. We, as practitioners, must walk a fine line, ensuring that we don’t dismiss real concerns while also steering clear of getting distracted in unfounded accusations driven by a scorned client.

As legal practitioners, implementing a systematic approach to screening is key. This includes gathering substance use histories, reviewing relevant medical records, and carefully documenting behavioral observations. Identifying concerns early allows for proactive rather than reactive case management, ensuring that decisions are well-informed and strategic. Additionally, having documented evidence strengthens our ability to provide clients with clear, objective advice when discussing potential risks and legal strategies.

Guardian ad Litem Considerations

When substance use significantly impairs a parent’s ability to participate meaningfully in litigation or make decisions in their child’s best interests, appointment of a Guardian ad Litem (GAL) may be necessary. Courts take several factors into account, including the severity of the substance use disorder, its effect on the parent’s decision-making ability, and any history of relapse. A parent’s willingness to seek treatment, level of insight into their condition, and the presence of coinciding mental health issues also weigh heavily in the court’s decision.

The timing of a GAL motion is crucial. Requesting an appointment early can help protect a client’s interests, facilitate engagement in appropriate treatment, and ensure the child’s needs remain a priority. Waiting too long, on the other hand, may lead to unfavorable court decisions or missed opportunities for intervention. Orders appointing GALs should clearly delineate authority regarding medical and treatment decisions, release of information authorizations, settlement authority, and communication protocols with counsel and the court.

In custody cases, a GAL can serve as a valuable advocate for a child, particularly when the situation does not yet warrant Juvenile Dependency Court involvement. However, if substance use escalates to the point where the home becomes unsafe, Child Protective Services may intervene, shifting the case to the dependency system. Identifying concerns early and taking appropriate legal steps can help ensure the best possible outcome for both the parent and child.

Evidence Development and Presentation

Effectively presenting substance use evidence—whether showcasing your client’s commitment to sobriety or highlighting risks to a child in the other parent’s care—requires careful attention to admissibility and authenticity. Some evidence sources to consider include:

  1. Drug Testing:
    • Hair follicle testing (90-day detection window)
    • Random urinalysis protocols 
    • Blood alcohol monitoring
    • Continuous alcohol monitoring devices (e.g., SCRAM, Soberlink)
  2. Expert Testimony:
    • Addiction specialists
    • Treating physicians
    • Toxicologists
    • Child development experts
    • Custody evaluators with substance abuse expertise
  3. Collateral Evidence
    • Treatment records
    • Criminal history
    • Employment records
    • School records
    • Third-party observations
    • Social media documentation

When presenting substance use evidence at trial, you should carefully review your jurisdiction specific Rules of Court and Evidence Code to ensure admissibility, overcome expected objections, and tailor your strategic presentation. Additionally, you may want to consider stipulating to the admissibility of certain records—such as drug testing results from certified labs or verified treatment records—to streamline proceedings and reduce evidentiary disputes.

 Crafting Effective Custody Orders in California
 

California Family Code section 3011 outlines the factors courts must consider when determining the best interests of the child, including any history of substance abuse by a parent. The habitual or continual illegal use of controlled substances, alcohol, or prescribed controlled substances by either parent must be considered in any determination of the child’s best interest. California Family Code section 3041.5 authorizes the court to order continued drug testing as a condition for visitation under these circumstances. The statute does not impose any temporal limitation on the duration of the drug testing requirement. Heidi S. v. David H., 1 Cal. App. 5th 1150 (2016). Testing
protocols should specify type and frequency of testing, payment responsibility, consequences of missed or failed tests, and chain of custody requirements. Treatment requirements should outline level of care specifications, compliance monitoring, progress reporting, and relapse prevention planning. Before considering allegations about substance abuse, the court may require independent corroboration from various sources, such as law enforcement agencies, medical facilities, or rehabilitation centers.

Claims of substance abuse against a parent will not always impact their custodial rights. For example, in A.G. v. C.S., despite the mother’s allegations of alcohol abuse, the court awarded sole custody to the father, citing substantial evidence supporting his ability to care for the child. A.G. v. C.S., 246 Cal. App. 4th 1269 (2016). The trial court considered the father’s history of alcohol use and determined that there was no evidence of abuse by the father. The court also noted the mother’s history of running away, refusal to share custody, and apparent mental instability. This case illustrates that while substance abuse is a critical factor, it is not the sole consideration in custody decisions. The court must weigh all relevant factors to ensure the child’s best interests are met. When defending against substance abuse allegations, ensure you gather comprehensive evidence of your client’s capability to care for the child. Similarly, when making such accusations against the other party, consider your client’s behavior and how it might influence the court’s perception.

When allegations of substance abuse are brought to the court’s attention, and the court makes an order for sole or joint custody or unsupervised visitation, the court must state its reasons in writing or on the record. A.G., 246 Cal. App. 4th 1269. If such orders are made against your client’s wishes, it’s important to ensure the court provides explicit reasoning for its decision. This requirement ensures transparency and accountability in custody decisions, emphasizing the child’s safety and best interest.

Custody orders in cases involving substance abuse should be both protective and rehabilitative. California public policy, as outlined in Family Code section 3020, emphasizes the importance of frequent and continuing contact with both parents unless such contact endangers the child’s wellbeing. When substance abuse is a factor, the court’s priority must be the child’s safety and emotional health. Family Code section 3011 requires the court to consider any history of substance abuse when determining custody, and the parent’s ability to provide a safe and stable environment. In cases where a parent is struggling with addiction, the court may order supervised visitation or
substance abuse treatment programs. Custody orders should reflect both protective measures— such as supervised visitation or temporary custody arrangements—and rehabilitative opportunities, encouraging the parent’s recovery while ensuring that the child is not exposed to harm. The ultimate goal is to create a custody plan that facilitates both the child’s safety and the possibility for meaningful parental involvement, consistent with public policy and the child’s best interest.

Monitoring and Enforcement

Successful management of these cases requires ongoing monitoring and a prompt response to noncompliance. Regular progress reports from treatment providers and real-time notification of test results form the backbone of effective monitoring. Clear communication protocols between all parties, defined consequences for violations, and emergency court procedures should be established and maintained throughout the case. Modification triggers should be clearly defined, including positive drug screens, missed tests, treatment non-compliance, new criminal charges, and relapse behaviors. By setting these parameters with precision, you can help avoid lengthy litigation and unnecessary legal costs.

 
Treatment Integration and Ethical Considerations

 
Effective custody orders should prioritize supporting treatment, not hindering it. Collaboration with treatment providers is key, and flexibility is important to allow for participation in intensive treatment. When appropriate, integrating family therapy, supporting involvement in 12-step or other recovery programs, and considering provisions for medication-assisted treatment should all be part of the broader treatment plan. Whether your client is the one facing substance use challenges or the other parent is dealing with addiction, addressing the underlying substance abuse is ultimately in the child’s best interest. Supporting both parents in their recovery should be a
central goal when crafting custody orders.
 

We face unique ethical challenges when representing parents with substance use disorders. These challenges include balancing the duty to protect client confidentiality with the need to prioritize child safety, addressing issues related to diminished capacity, and coordinating with criminal counsel when appropriate. Handling client dishonesty while maintaining professional boundaries requires constant attention and thoughtful judgment. It’s a delicate balance that demands both sensitivity and a clear sense of responsibility.

 
Conclusion
 
 
Navigating custody cases involving substance use is never a simple task. These cases require careful consideration of multiple factors—balancing the well-being of the child with the rights and responsibilities of both parents. While substance abuse may significantly impact custody decisions, it’s just one piece of the puzzle. As attorneys, our role is to ensure that all angles are thoroughly explored, evidence is presented with care, and that the focus remains on what’s best for the child. By supporting recovery efforts, maintaining transparency, and promoting ethical practices, we can help create custody arrangements that not only protect the child’s safety but also encourage the healing and growth of both parents.
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iArticle edited by Alaina Lynch and Kevin Alexander

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