Substance Abuse and Divorce: Kick the Habit or Lose Time with Your Kids

Dallas family law attorney Alissa Castro discusses the role substance abuse plays in divorce and how using alcohol and drugs can jeopardize child custody, visitation and possession in Texas.

Abuse of alcohol and drugs – including prescription drugs – is one of the biggest reasons marriages fall apart. As recently reported,13.7 percent of women and 5.2 percent of men cited drinking or drug use as a reason for getting divorced in a Journal of Family Issues survey.

How substance abuse affects divorce settlements, when children are NOT involved

In general, for people who are married and don’t have children, substance abuse usually has a minimal impact on divorce settlements in Texas. However, it could lead to fault grounds for divorce such as cruelty, depending on what happened and how the substance abuse impacted the marriage.

When it comes to addictive traits, the court may award a disproportionate amount of the couple’s estate to the non-addict party based upon the conduct of the addict during the marriage. If the addict was secretly gambling away the couple’s money or spending money on drugs or alcohol, this behavior could also lead to a claim of fraud or waste in the divorce.

However, the family courts in Texas counties are typically sensitive to the fact that addiction is a disease and that people usually don’t set out to become addicts. Still, the courts consider all of these factors and determine awards of marital property on a case-by-case basis.

How substance abuse affects child custody, visitation and possession in Texas

When children are involved, the courts take substance abuse very seriously. The Texas Family Code Section 105.001 clearly states that the court has the ability to make orders to ensure the safety and welfare of children during a divorce. To help protect kids from a parent who abuses drugs or alcohol, a graduated possession schedule or other restrictions can be put in place to provide a safe, stable and nonviolent environment for a child.

These graduated schedules occur in multiple phases and may include:

Supervised possession. During this phase, all visits with the children are supervised by a court-appointed supervisor or person agreed-upon by the parties. The court may also order that the party abstain from drinking 8 hours prior to and during possession, attend 90 meetings (Alcoholics Anonymous, Narcotics Anonymous, etc.) in 90 days and submit to alcohol and/or drug tests.

Expanded possession time. Once the 90-day requirement (or other specified milestone) is met, or the Court believes the party has been able to stay clean and sober for a set period of time, the parent may be awarded more supervised possession time. Proof of regular meeting attendance (usually at least weekly) and random sobriety tests are normally required during this phase.

Unsupervised possession. After abiding by certain requirements for a set period of time, parents may eventually graduate to unsupervised possession. However, if he or she relapses, it is likely that the parent will have supervised or other restrictions to their possession or access of the child.

Rules and requirements vary based on the individual and are determined on a case-by-case basis.

FYI, smoking pot is a big no-no when it comes to child custody and visitation in Texas

It’s important to note that even though many states have decriminalized the use of marijuana, Texas is NOT one of those states. When consumption of any illegal drugs has occurred in recent months, there will likely be orders against it – if the parent wants access to his or her kids.

Even if you personally believe it’s OK to use marijuana recreationally, Texas courts take marijuana use very seriously and will often limit visitation until a parent can prove he or she is no longer using the illegal drug (via baseline hair or fingernail tests).

Abuse of prescription medication is also a big concern. Depending on the situation, the court may order a baseline be established for any prescribed medication taken to monitor for potential abuse.

How to protect your kids when a partner abuses drugs or alcohol

Clearly, substance abuse isn’t uncommon, and for some couples, divorce is the only option. If you are a parent who wants to limit your children’s exposure to a partner who is abusing drugs or alcohol, consider the following steps.

1. Collect evidence of the substance abuse.

Following separation from a spouse or partner, courts require evidence of substance abuse be provided before putting orders in place to limit possession of the children. Without evidence, your children could end up in the possession of someone who is abusing substances and is unable to adequately protect them.

If the substance abuser drinks a bottle of vodka or smokes a joint, take a picture or video. Keep track of and make copies of liquor store receipts or credit card charges for alcohol. Monitor social media and print and save copies of photos or posts that indicate substance abuse.

2. Call Child Protective Services and file a report.

If your partner’s substance abuse and related behavior is putting your children in danger, you can call CPS and file a report. Once a report is filed, CPS will open an investigation and those allegations will be on the record.

CPS can also create a safety plan that could potentially trump a court order. All parties are required to sign and abide by the plan. In some cases, CPS may even take possession of a child if they find he or she is in imminent danger.

3. Call the police if you are fearful for your or your child’s safety.

While substance abuse doesn’t always escalate to family violence, there are many instances when a substance abuser can pose a threat to your family. Call the police if you are afraid your partner could harm you or your child.

4. Contact a family law attorney for advice.

He or she can explain what legal steps you can take to protect your kids from a substance abuser, remove the substance abuser from your home, and how to secure a child custody and visitation agreement that keeps your children safe.

Your attorney can also counsel you on steps to take to avoid having to go to court every time you need relief. For example, you could request orders be put in place where the substance abuser would be immediately denied possession of the children if the party falls off the wagon.

5. Request emergency or temporary orders that require the other parent be tested for drugs and/or alcohol.

Your divorce attorney can help you with this important step. Without these orders, the court may assume a standard possession order is appropriate, which could put your children in danger.

These orders can help ensure drug/alcohol testing and safety procedures are put in place immediately. The court can also require the substance abuser submit to random testing with in-home tools like SoberLink, which tests the breath for alcohol and can even send a report with the results to the other parent and the court.

A NOTE OF CAUTION: Most judges have zero tolerance for frivolous accusations and requests for drug and alcohol testing without evidence of abuse. In addition, your partner can turn around and request the same testing and requirements be ordered for you. We often hear the accused substance abuser say, “The only time I drank was when my spouse and I were drinking together.” Only pursue this avenue if you truly believe your children are at risk.

Rely on a family law attorney who specializes in child custody and visitation

If drug or alcohol abuse is taking a toll on your family, reach out to a reputable family law attorney for advice. He or she can help you navigate the legal system and take appropriate steps to keep your children out of harm’s way.

Alissa Castro is an enthusiastic, young attorney with experience in a wide variety of legal venues. She has donated her services to several charitable causes including the Dallas Volunteer Attorney Program, Mississippi Volunteer Lawyer Project and Catholic Charities. To learn more about divorce and child custody options in Dallas and Collin Counties, please call (214) 617-1583 to speak confidentially with a knowledgeable and considerate member of the Connatser Family Law team.

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