Overview of Child custody and Visitation
Whenever a family law court makes a decision in a divorce or family law case that involves child custody, the decision must reflect and uphold the child’s “best interests.” (Fam. Code, §§ 3011, 3020, 3040, 3041.) The court is also expected to approve custody and visitation agreements that allow both parents to have “frequent and continuing contact” with their child. Both parents are also supposed to split parenting rights and duties to a reasonable extent, given that each parent is deemed responsible enough to raise a child and respect their child’s best interests. (Fam. Code, § 3020(b).)
In summary, Family Code section 3011 provides factors the court must consider in making a determination of the child’s best interest, including:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against (i) the other parent; (ii) any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship; or (iii) a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
(c) The nature and amount of contact with both parents.
(d) 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.
Can the Court Consider a Parent’s History of Drug or Alcohol Abuse?
In deciding what custody/visitation arrangement is in the child’s best interest, the court must consider a parent’s “habitual or continual” abuse of alcohol, or a parent’s “habitual or continual” illegal use of controlled substances or prescribed controlled substances. (See Fam. Code, § 3011(d); Health & Saf. Code, § 11000 et seq.) Note that the court might require evidence that independently backs up allegations of such habitual or continual substance abuse. For example, a conviction for the illegal use or possession of a controlled substance could be evidence; a parent’s own testimony (at a live deposition or hearing, or through a written declaration) of his/her substance abuse could be evidence; and a police report and drug rehabilitation record could be evidence. (Fam. Code, § 3011(d).)
When Can the Court Order a Parent to Undergo a Substance Abuse Evaluation?
In certain cases, as part of the court’s assessment of what child custody/visitation arrangement will further the child’s best interest, the court can order a parent to undergo testing for the illegal use of controlled substances and/or alcohol. As a preliminary matter, the court must find that, by a preponderance of the evidence, there is evidence of a parent’s habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol. (Fam. Code, §3041.5.) “Preponderance of the evidence” means a 51% chance or more likely than not.
What Happens at a Substance Abuse Evaluation?
All testing must follow procedures and standards set forth by the U.S. Department of Health and Human Services for drug testing federal employees, and testing must be conducted through the “least intrusive” method available. (Fam. Code, § 3041.5.) In practice, this means that the court can order urine tests. There is no statutory time limit on the testing for illegal use of controlled substances and the use of alcohol. (Heidi S. v. David H. (2016) 1 Cal.App.5th, 1150, 1172-1173.)
In general, a substance abuse evaluation is performed through a screening and assessment when there is a concern that a person’s use of alcohol or drugs has become a problem. The professional performs a screening to evaluate whether a specific problem is present. Next, an assessment is conducted to define the problem, make a diagnosis, and formulate treatment recommendations.
Multiple factors are considered, including:
- The amount of drugs and/or alcohol used
- The frequency of use
- What consequences have resulted from the use (e.g. how the substance use has affected the user’s life and the lives around him/her)
- The duration of usage
- The circumstances under which the person began using drugs or alcohol
- What type of treatment is needed
- What impediments there may be to treatment and recovery
- The potential for relapse
- Whether there are co-occurring conditions, including physical or mental health issues
How are Test Results Used?
The results cannot be used to bring criminal or civil charges against a parent. Further, the results must be kept confidential and are stored in the court file as a sealed record. (Fam. Code, § 3041.5.)
The results can only be used to help the family court craft custody/visitation orders. (Fam. Code §§ 3011, 3041.5.) However, the court cannot base its entire adverse custody/visitation decision on such results. It must also consider other factors in determining what custody/visitation order is in the child’s best interest.
If you are concerned about whether drug or alcohol use may affect child custody/visitation issues in your case, talk with a trusted family lawyer about your rights under the law. At Cage & Miles, LLP, you can find highly-rated and greatly-experienced San Diego divorce attorneys to help you through this difficult time. Contact us today to request a confidential consultation.