According to a 2016 report of the U.S. Surgeon General, one in seven Americans will face “substance addiction.” This means that substance abuse, whether of opioids, alcohol, street drugs or marijuana, will become an issue in many divorce and custody cases.
The custody statutes in Virginia and the District of Columbia both specify the physical and mental condition of each parent as a factor the court shall consider in making appropriate determinations regarding the children of divorce. So it is clear that when separating and/or divorcing your spouse, any substance abuse allegations that your spouse may make against you will be highly relevant.
How will such allegations be assessed? It is highly likely that if your spouse’s allegations are credible, a court will order a comprehensive mental and physical evaluation by a qualified medical expert which would include a detailed assessment of any parental substance abuse concerns. Such an evaluation will assess the extent and current status of the substance abuse as well as what treatment avenues are being utilized.
However, the over-arching standard in all custody matters is “the best interest of the child.” Thus, a court will focus not just on whether you have substance abuse issues but rather on the nexus between your issues and what your children need. There is a consensus among mental health professionals that the children of divorce fare the best if they have strong relationships with both parents. Thus, a balancing approach will generally be taken by a court – in what ways does your substance abuse create a risk to the safety and well-being of your children and how can such risks be mitigated or softened so that your children benefit from being able to spend time with you.
It appears that the ongoing trend in the Court system is the destigmatization of mental health issues in general and substance abuse issues in specific. Particularly in a civil context, addiction tends to be viewed by courts as something to be remedied rather than as an insurmountable bar.
Whatever the specifics of your substance abuse issues and of your spouse’s concerns, it will be important for you to find an experienced family law attorney who will take a nuanced approach to handling your case, and will work with you to develop a comprehensive, long-term strategy to tackle the multi-faceted nature of addiction concerns when custody is at issue.