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Janice Cho

Child Custody in California Amidst Substance Abuse

Grappling with a custody dispute is inherently difficult even in the most amicable of divorces. Custody negotiations are a complex web of legal, emotional, and practical challenges for parents and children, made even more so difficult when one parent is struggling with an addiction or substance abuse issue. The team at the Law Offices of Janice Cho, APC is dedicated to helping guide you through your custody issues with understanding, compassion, and expertise.


Addictions, Then and Now


Addictions sometimes come and go during the regular course of married life and the stressors a divorce brings can trigger or exacerbate existing struggles, even for the most dedicated person in recovery. Previous and present addiction struggles can impact families in both obvious and more subtle and profound ways. 


How do you navigate custody issues without addressing a substance use issue? You can’t and you don’t. Custody negotiations require a frank assessment by both parties of personal strengths and weaknesses and a functional agreement on what’s best for the child (or children) involved. 


California family courts focus on achieving a balance between the standard colloquially known as “the best interests of the child” and maintaining and strengthening the bonds between parents and children, with the children's safety and well-being of paramount concern. When substance abuse enters the equation, it adds layers of complexity that can dramatically alter the custody landscape.


The California Family Code doesn't mince words when it comes to substance abuse. Section 3011(d) explicitly directs courts to consider "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. This isn't merely a box to be checked; it's a mandate for judges to delve deeply into the nature, extent, and impact of the substance abuse on the parent's ability to safely care for their child.


The existence of substance use issues in one parent can mean the difference between joint physical custody and a more restrictive arrangement where the parent’s (with the substance use issues) time with the children is supervised or contingent upon ongoing treatment and sobriety. The court might order alcohol test reporting, drug testing, mandate participation in rehabilitation programs, or require evidence of sustained recovery before expanding parenting time.


Is Addiction Disqualifying for Custody?


It's crucial to understand that California courts don't automatically disqualify a parent from custody or visitation solely based on a history of substance abuse. The law recognizes that addiction is a complex disease, often characterized by periods of recovery and relapse. A parent who demonstrates a commitment to sobriety and has taken concrete steps to address their addiction may still have a strong case for significant custodial rights.


This nuanced approach reflects a growing body of research on the impacts of parental substance abuse on children. Studies have shown that while active addiction can have profound negative effects on a child's development and well-being, maintaining a relationship with a recovering parent can be beneficial, provided appropriate safeguards are in place.


Questions that will come up during custody negotiations with a parent with an addiction issue/history will include whether there have been periods of sobriety punctuated by relapses. How has substance use affected the ability to care for children in the past? These are questions that will need to be addressed, backed by documentation and, potentially, expert testimony. 


What if it’s Me, I’ve Got the History? 


A parent with a substance use history faces the challenge of demonstrating fitness as a parent while acknowledging the existence of substance struggles. This might involve providing evidence of ongoing participation in Alcoholics Anonymous or other support groups, clean drug tests, testimonials from counselors or sponsors, and a detailed plan for maintaining sobriety while caring for the children.


In the more complicated (and/or contested) situations, a judge may appoint a custody evaluator to conduct a more in-depth assessment of both parents. This professional will interview the parents, the children, and other relevant parties, observe parent-child interactions, and review pertinent records to provide the court with a comprehensive recommendation.


It's worth noting that California's approach to substance abuse in custody cases isn't static. Recent years have seen evolving societal attitudes towards certain substances, particularly marijuana. With the legalization of marijuana for recreational use here in California, courts have had to recalibrate how they view its use by parents. While habitual use that impairs parenting ability remains a concern, occasional, responsible use is generally viewed similarly to alcohol consumption.


How Do We Get to an Agreement?


California strongly encourages mediation in custody cases, offering parents multiple opportunities to craft agreements that address substance abuse concerns while maintaining flexibility. A mediated agreement might include provisions for ongoing testing, treatment milestones tied to expanded visitation, or detailed safety plans for when the children are in a parent’s care.


If mediation proves unsuccessful, or if the substance abuse issues are severe, the case may proceed to trial. Here, both parents will have the opportunity to present evidence, call witnesses, and make their case for why their proposed custody arrangement serves the children's best interests. Expert witnesses, such as addiction specialists or child psychologists, often play a crucial role in helping the court understand the nuances of substance abuse and its impacts on parenting.


The outcome of such trials can vary widely depending on the specific circumstances. In some cases, a parent with a history of substance abuse might be granted only supervised visitation, with a path to expanded rights contingent upon demonstrated sobriety. In others, the court might opt for a joint custody arrangement with built-in safeguards, such as random drug testing or required check-ins with a family court services professional.


It's important to recognize that custody orders involving a parent with substance abuse issues are often more fluid than typical arrangements. Courts may build in periodic reviews to assess the parent's progress and adjust the custody plan accordingly. This approach acknowledges the reality of recovery as a journey, with potential setbacks and breakthroughs along the way.


What is a Minor’s Counsel?


For children caught in the middle of these difficult situations, California courts often appoint minor's counsel – an attorney specifically tasked with representing the child's interests. It is the minor’s counsel’s job to make sure the child’s voice is heard and their needs remain at the forefront of the proceedings, despite the often-contentious back-and-forth between warring parents.  


Call Us. We Are Here for You. 


Navigating child custody in California when substance abuse is a factor can be a grueling, heart-wrenching, and, at times, frustratingly slow process. It requires a delicate balance of legal acumen, emotional intelligence, and a steadfast focus on the children's well-being. 


When you need an Oakland family lawyer, our office is here to guide you through this delicate custody issue in a sensitive and holistic fashion, without sacrificing you or your child’s needs and safety. Whether negotiating a settlement or conducting litigation, we’re here to explain the landscape to you, inform you of your choices, and ground the process.


Call (510) 925-2651 when you need the assistance of an experienced Oakland custody lawyer.


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