Can Addiction Make Me Lose Custody of My Child?

During a divorce or other custody cases, the court decides child placement arrangements by considering what’s in the child’s best interest.² Although state statutes may vary in terms of “best interest” determinations, there are several guiding principles that are typically used—all of which can be affected by substance use. For instance, a parent who struggles with substance abuse might also struggle to meet their child’s physical and mental health needs or provide shelter, food, and safety for their child.²

Overview of Child Custody

Can you lose custody due to drug use? Are you guaranteed custody if you’re in a custody battle with someone who abuses substances? There’s not a simple answer. Custody is the delegation of parental responsibilities for a child under the age of 18.³ All decisions are made by a judge with the child’s or children’s best interests in mind. There are a few different forms of custody, including:^3,4,5

• Legal custody. Legal custody describes who is responsible for making decisions about the child’s welfare. This includes school enrollment, medical care, and other legal consents.
• Physical custody. This determines where the children will live.
• Joint custody. Joint legal custody means shared decision making among the parents or guardians; joint physical custody refers to the child residing with each parent for specified amounts of time.
• Sole custody. In this arrangement, only one parent or guardian maintains physical custody and/or legal custody. Sole physical custody means the child lives with one parent or guardian. Sole legal custody means that one parent or guardian makes the major decisions for the child and does not have to consult the other parent.

In many instances, custody might include a combination of these scenarios. One parent might maintain sole physical custody, but legal custody may be ruled to be a joint effort, for instance.

Can Substance Abuse Affect Child Custody?

It is possible for a mother or father to lose custody of their child or children due to substance abuse. Parental substance use can affect a child’s academic, social, and family functioning, as well as the child’s safety and well-being, too.¹ In child custody cases, the judge determines what is in the best interest of the child.² Drug courts get involved when substance abuse hinders a parent or guardian’s ability to care for a child or when the parent poses a danger to the child.⁶

In 2019, an average of 38.9% of children removed from the home were removed for substance-use-related concerns.⁷

Substance abuse from a welfare position is defined as a pattern of substance use that results in at least 1 of 4 consequences in the last 12 months, which may include: ⁸

• Failure to fulfill parental, work, home, or school obligations.
• Putting oneself or others at risk or harm (e.g., driving under the influence).
• Substance-related legal problems, such as possession of illicit substances, for instance.
• Continued substance use despite having persistent or recurrent interpersonal or social problems.

One of the major reasons children enter the foster care system is due to abuse or neglect associated with parental alcohol or drug abuse.⁸ But it doesn’t have to be for good. Child welfare workers partner with drug and alcohol treatment centers to help parents with substance abuse issues retain or regain a parental role in their child or children’s lives. Thus, as part of the Child Protective Services (CPS) investigation, alcohol and/or drug involvement is assessed through screening and in-home evaluations.⁸

Can a recovering alcoholic get custody?

Most states have family treatment courts (FTCs), also referred to as family drug courts or dependency drug courts. These courts work with professionals in child welfare, substance recovery, mental health agencies, and the court system to embrace a collaborative approach to treating families with SUDs.⁹ The goal is to help the individual with the SUD achieve safe, stable, long-term recovery; reunification with their child or children; and permanency.⁹

While each case is different, parents in recovery need to show the court that they have successfully completed an alcohol or drug treatment program, provide evidence of successful recovery—typically through drug tests and active participation in rehab treatment aftercare programs (which may include the support of recovery specialists and/or peers)—and proof that they can remain drug- and alcohol-free (usually with continued drug testing).¹⁰

Substance use treatment is essential to both the parent and child’s well-being.¹ Early identification and treatment of substance abuse leads to more successful outcomes.¹¹ Therefore, for parents in treatment, child welfare, substance-use clinicians, and the court system consistently communicate with each other to monitor the individual’s progress through treatment.¹¹ From there, recommendations regarding custody may be made based on the parent’s recovery.¹¹

Can a DUI Affect Custody?

It depends. The determination is ultimately up to the judge presiding over the case, so the particulars matter.² For instance, a single DUI might affect a custody case differently than multiple DUIs, which might establish a pattern of reckless behavior in the court’s eyes.¹² Other factors that may influence the court’s decision regarding custody after a DUI is whether the child was in the vehicle at the time, blood alcohol concentration (BAC) level, and the overall seriousness of the DUI.¹²

Can Child Protective Services Take My Child Away?

While not every child, whose parent or caregiver misuses substances, experiences abuse or neglect, they are at an increased risk.⁸ In fact, a parent who abuses alcohol or drugs is considered a serious risk for child safety. Therefore, a child welfare worker might deem it best to place the child in foster care.⁸

According to the Adoption and Safe Families Act, a child placed in foster care will need a permanency plan within 12 months.⁸ Maintaining the family unit is one of the guiding principles in determining what’s in the child’s best interest, so removing a child isn’t preferred.² It’s important to note that although courts work hard to keep children with their families, a parent may forfeit their parental rights if they refuse substance abuse treatment^.2,8

Take Our Substance Abuse Self-Assessment

Take our free, 5-minute substance abuse self-assessment below if you think you or someone you love might be struggling with substance abuse. The evaluation consists of 11 yes or no questions that are intended to be used as an informational tool to assess the severity and probability of a substance use disorder. The test is free, confidential, and no personal information is needed to receive the result.

How Long Does Rehab Last?

Treatment length varies depending on your needs, the treatment type, and your progress.¹³ Outpatient programs allow individuals to come to the rehab facility to participate in therapies and counseling but return to work or home after.¹³ This option can be helpful for parents attending rehab with a child, allowing the parent to continue to share in child care responsibilities while also receiving the help that they need.

For others, inpatient addiction treatment, where treatment takes place at a live-in, residential facility with 24/7 care, might be the best option for long term recovery. Inpatient rehab can range from a couple weeks to a month or more. In this instance, children may stay with a spouse, partner, or relative. Or child welfare workers might put the child or children in foster care if there’s no other trusted, safe option.

There’s no one-size-fits-all treatment plan. Instead, effective treatment needs to be customized for the individual and their circumstances.¹³ Some factors that may affect the duration of treatment include:^14,15

• The severity of substance use.
• The substance(s) used.
• Other co-occurring mental health problems.
• Underlying physical health issues.
• The length of time covered by insurance.
• Your support system outside of treatment.

Your family members may also choose to take part in family therapy during treatment, where family members take an active part in the treatment process.

Can I Go to Rehab Today?

There are some same-day admission rehab programs depending on your location, facility capacity, and resources available to you.¹⁶ This is called treatment on demand, but it is typically dependent on sufficient staffing.¹⁶ If same-day rehab treatment is not available, there may be interim options accessible for some individuals.¹⁶ For instance, individuals with opioid use disorder may be able to begin methadone maintenance prior to being admitted to a rehab facility.¹⁶ Others may start participating in a 12-step program such as Al-Anon or Nar-Anon.^8,16 Another factor to take into consideration is that you might need medical detoxification or stabilization before entering rehab.⁸ The best way to figure out what you need in terms of treatment is to talk to your medical provider.

Sources

1. Lipari, R.N. & Van Horn, S.L. (2017, August 24). Children living with parents who have a substance use disorder. The CBHSQ Report: August 24, 2017. Center for Behavioral Health Statistics and Quality, Substance Abuse and Mental Health Services Administration, Rockville, MD.
2. Child Welfare Information Gateway. (2020, June). Determining the best interests of the child. Washington, DC: U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau.
3. Child Welfare Information Gateway. (n.d.) Glossary C.
4. National Center for State Courts (n.d.). Looking at Joint Custody Through the Language and Attitudes of Attorneys.
5. Legal Information Institute. (August 2021). Sole Custody.
6. Child Welfare Information Gateway. (n.d.). The Interplay Between Child Maltreatment Legislation and Caseworker Practice.
7. National Center on Substance Abuse and Child Welfare. (2019). Child welfare and alcohol and drug use statistics.
8. National Center on Substance Abuse and Child Welfare. (n.d.). Understanding Substance Abuse and Facilitating Recovery: A Guide for Child Welfare Workers.
9. Center for Children and Family Futures and National Association of Drug Court Professionals. (2019). Family Treatment Court Best Practice Standards.
10. Child Welfare Information Gateway. (January 2021). Parental Substance Use: A Primer for Child Welfare Professionals.
11. National Center on Substance Use and Child Welfare. (n.d.). Brief 2: Drug testing for parents involved in child welfare: Three key practice points.
12. H Law Group. (2021, March 25). Can a DUI affect child custody?
13. National Institute on Drug Abuse. (2018, January). Principles of Drug Addiction Treatment: A Research-Based Guide (Third Edition).
14. McGovern, M.P. & Carroll, K.M. (2003). Evidence-based practices for substance use disorders. The Psychiatric clinics of North America, 26(4), 991–1010.
15. National Institute on Drug Abuse. (2018, July 2). The science of drug use and addiction: The basics.
16. Redko, C., Rapp, R.C., & Carlson, R.G. (2006). Waiting Time as a Barrier to Treatment Entry: Perceptions of Substance Users. Journal of drug issues, 36(4), 831–852.