Parental Substance Abuse and Children: Steps to Protection & Ensuring Treatment Requirements
Part One: Steps to Protection
Substance abuse, as most of us are aware, is distressingly common. According to a study from Harvard in 2016, 1 in 5 U.S. children live in homes where parental addiction is present. Long considered one of the “three A’s” complicit in divorce—affairs, abuse, or addiction—it follows that many marriages, often with children, split up at least in part due to substance abuse of one or sometimes both partners. Where does this leave kids, vulnerable and in need of both physical and emotional care, stuck inside the crisis?
Parental Substance Abuse and Protecting Children
Often the first time I see a client in an emergency situation is for this very reason—a parent discovers the ex or soon to be is using drugs or alcohol (or has fallen back into this pattern) and immediate concerns arise for the child’s safety.
The first step is to obtain an emergency order from the family court by making an ex parte request for an emergency TRO (temporary restraining order)—this is achieved by filing an affidavit which describes, under penalty of perjury, the client’s specific concerns about the other parent’s substance abuse and potential harmful effect on the child. The request for an Ex Parte TRO is presented to the Court without notice to the offending party (in this instance, the person who is putting the child’s safety at risk). Because of our guarantee of due process, there are very few instances where action can be taken against a person without first receiving prior notice. This is one of those instances.
The highest standard in family court is always best interest of the child, therefore, courts will take immediate action when the potential safety of a child is involved.) The party in question is often enjoined by the court from access to the child without supervision until a hearing—which is set to occur within 14 days of issuing the TRO.
What Occurs at the Hearing?
While the TRO serves as band-aid, the hearing allows each side to present evidence and testimony, upon which the court will place appropriate rulings (remember, when the request for a TRO was presented, the Court only heard from one side).
Documentation is everything. Evidence clients should produce at a hearing can include police reports, DUI charges, witness accounts, and journals/diaries documenting behavior or other similar verification of substance abuse. The goal is to establish a history.
Has the person been under the influence while the child was in his or her care, driven the child, or otherwise shown inattention? By presenting appropriate evidence at the hearing, a request can be made for the court to order an assessment regarding substance use and psychological fitness to care for the child or children. When a recurring problem is established, the court will often order assessments by experts, who, based upon assessment results, will issue advice to the court for treatment.
One of the provisions may include supervised possession and substance abuse testing with a stair-step approach to visitation—i.e. visitation starts supervised and less frequent, but if supervised visitations goes well and steps are taken to address the substance problem, the party may climb the ladder, incrementally earning more time with the child by establishing clear and consistent commitment to improvement. While courts want both parents to be able to see their child, the court’s overarching concern is ensuring that while in the care of either parent, the child is safe and, in a substance abuse situation, that the parent is not under the influence with diminished capacity while caring for the child.
Supervision in Visitation
While some parents will agree to allow a family member—say a child’s grandmother, aunt, or uncle—to oversee visits between children and a parent with a substance abuse issue, many family members do not, understandably, want to be in charge of this emotionally draining task, and who can blame them?
Not only inconvenient, it is hard on kids to have short, scheduled visitation with a parent struggling with addiction. Facilities for cost have become more widespread, as have private “supervisors” trained to oversee visitations. But obviously, these options cost money and still maintain the element of inconvenience. The court ideally wants children to see their parents, but will not put a child in a compromising position regarding care.
Therefore, it is in the best interest of the child as well as the parent, and the entire family, to help the parent with the substance abuse issue to access the help he or she needs to gain the ability to parent. Punitive measures focused on punishment for punishment’s sake rarely have positive consequences. Unfortunately, the nature of addiction is insidious and prone to recidivism; still, parents able to hold out hope by maintaining a connection to their kids can use this very reason to take the necessary steps toward recovery. Myriad options exist to address addiction and serve as anchors upon which to stay afloat: AA, which is free, rehabilitation centers, both in and outpatient, and counseling services with trained experts schooled in the challenges inherent in addiction. At the end of the day, protecting the child remains the highest purpose.
Part Two: Ensuring Treatment Requirments
Confirming Client’s Adherence to Provisions
If a party with a history of substance abuse has been undergoing supervised visitation and completed visits without issue for a pre-determined period of time, he or she may graduate from supervised visitation to provisional time with the child in his or her possession. But this gets tricky. How does the court ensure the individual continues to remain substance-free when the child is present without that supervision? Three valid and objective tests have been around for years that can detect the use of certain substances: urinalysis (by far the most common), hair, or nail analysis. Urinalysis covers a shorter range of time but substances will show up the quickest; hair tests uncover substance usage from further back in time, which is also true of nails Basically, the test administered rests upon the individual circumstance and what we are trying to accomplish. Depending upon the substance and the timing, one test may work better for than another.
New Technology in Alcohol Testing
The means to prove a person’s use of substances have come a long way, particularly as technology, in general, has advanced. The testing that has come the farthest is the monitoring of alcohol. Companies such as soberlink or SCRAM are electronic alcohol monitoring companies utilizing wifi. Soberlink, for instance, provides remote alcohol monitoring combining a Breathalyzer with a wifi connection that communicates results through a cloud-based portal. Facial recognition software confirms the identity of the test-taker and tamper resistant sensors ensure test integrity. SCRAM promotes handheld breath testing devices which require a person to submit to a certain amount of testing defined by the court: it may be every day or only required during specific parenting times. Regardless, these companies set up each case and the particulars with automated text messages that alert clients when to perform the test. The system logs the results and shares to the appropriate agreed upon parties, which may include the other parent, lawyers, counselors, and/or judges. GPS monitoring, as well as ankle bracelet devices, are also available. Essentially, the court mandates a certain schedule, the details to which the test taker may not be privy: it might be three or four times a day at random intervals, or more spread out over days but seemingly without a pattern, making “cheating” difficult. If the person has the child in his or her possession and does not take the test, this refusal counts as a “fail” and the agreed upon consequences set up by the court are followed accordingly. Having the accuracy and functionality of these kinds of tests holds individuals accountable. This accountability coupled with the reality of not being able to see their kids does spur some to stick to hard-won sobriety.
Too many families face the desolation and wreckage of parental substance abuse and the fallout that occurs to every family member. Whether we believe the disease model of addiction or take the stance that a person has ultimate control over his or her actions, the addict walks the perilous line between the want and the cost of having. For children, therefore, the better we can safeguard them while helping their parents control their addiction, the better off the entire family will be.
About the Author
Jonathan James is an associate attorney at Hance Law Group who exclusively handles family law matters, and has worked on cases ranging from paternity & custody disputes to complex property divorces. Mr. James is very comfortable in the courtroom, and makes a personal investment in his clients’ cases in order to achieve the best outcome possible.