The Consequences of Drugs and Alcohol on Child Custody in Texas
In addition to the negative impacts to your mind and body from drug and alcohol use, substance abuse has serious consequences when it comes to child custody in Texas. In this article, we’ll review the child custody process in Texas, and the results of alcohol and drug abuse on its outcome. From new custody rulings to changing existing custody orders to filing an investigation against an ex you believe is abusing, we’ll explore drug and alcohol use in relation to child custody from the side of the user and his or her spouse.
Reviewing the Legal Process for Child Custody Cases in Texas
In Texas child custody cases, the court’s primary objective is to protect the best interests of the child in their rulings. These rulings are divided into two main categories: conservatorship and possession and access:
Conservatorship: Conservatorship covers the rights and responsibilities of parents to make primary decisions for the child, including lifestyle, education, and medical. Conservatorship is broken down into sole managing conservatorship and joint managing conservatorship. In sole managing conservatorship, one parent makes all of the decisions. In joint managing conservatorship, both parents work together to make these decisions.
Possession and Access: Possession and access refers to physical custody and visitation rights. There are standard and extended standard statutory possession and access schedules in Texas. These schedules determine the amount of time parents spend with their children after a divorce.
In certain circumstances, like in an uncontested divorce, couples make their own possession and access schedules, which are then approved in court. An experienced family lawyer can help you create these types of schedules.
Children 12 and older are able to make their case for conservatorship and possession. As stated on the Texas State Law Library website, “Upon request by one of the parties in a custody suit, Texas law requires the court to interview a child who is at least twelve years old about their wishes about custody. The court must still make a decision that is in the best interest of the child, but the child can at least have the opportunity to have their preference heard.”
How Can Substance Abuse Negatively Impact Child Custody in Texas?
Because they must act in the best interests of the child, a judge will safeguard a child from being in an unhealthy home environment with a parent whose judgement or decision making may be impaired due to drug or alcohol abuse.
If you have a documented history of substance abuse, or if it’s proven that you’re abusing drugs or alcohol at the time of your divorce, your custody can be monitored, limited, or revoked entirely.
If you’re a recovering alcoholic or drug user, you’ll have to provide compelling evidence that you’re capable of providing a safe, healthy home for your child. Even then, a history of relapsing can persuade a judge to prevent you from getting custody or issue a graduated visitation schedule which allows greater visitation depending on your ability to meet certain thresholds when it comes to abstaining from drugs and alcohol.
What is a Graduated Visitation Schedule?
A graduated visitation schedule is a multiphase form of custody where a parent with a proven substance abuse problem progresses through the following stages of possession:
Phase 1: Supervised Possession
At the initial supervised possession phase, child visitation is supervised by a court-appointed person or an individual that’s mutually agreed upon by both parents. Courts can also rule that the parent may not drink within eight hours of possession or during possession. The parent may also be ordered to attend 90 substance abuse treatment meetings in 90 days and take ongoing alcohol and/or drug tests including a daily breathalyzer test.
Phase 2: Expanded Possession
Once the parent has met the 90-day requirement or other court-mandated milestone in phase one, they may receive expanded possession time. Ongoing proof of sobriety through testing and regular meeting attendance will be required to progress to phase three.
Phase 3: Unsupervised Possession
After meeting the requirements of phase two for a specified period, the parent can be rewarded with unsupervised possession.
What if You Suspect Your Spouse is Abusing Drugs or Alcohol at the Time of Your Divorce?
If you suspect your spouse is drinking excessively or using drugs at the time of your divorce, you should raise the concern prior to the child custody ruling, and request emergency or temporary orders requiring the other parent to be tested. At this point the judge will usually order an investigation and testing to determine if your concerns are valid, and whether your spouse’s behavior is a threat to the child’s welfare. They can also require the other parent to submit to random testing or use a constant monitoring device.
If you’re working with a divorce lawyer, which is highly recommended when your children’s welfare is on the line, they will be able to assist you with filing temporary or emergency orders.
Keep in mind, if you do pursue these orders, your spouse can request the same and subject you to identical testing and investigation. This is not to dissuade you from reporting abuse if you are also abusing. Your child’s wellbeing should trump any concerns about discovery of wrongdoing or embarrassment in court. If you are a parent abusing either drugs or alcohol and entering into a divorce, you need to make every effort to stop using immediately if you want possession of your child.
Proving Drug or Alcohol Use in a Texas Custody Case
There are various resources available in Texas to prove that a spouse is abusing drugs or alcohol.
Some simple actions you can take are:
- Take pictures or videos of the other parent drinking in excess or using drugs (that includes marijuana in Texas).
- Monitor social media and document evidence of abuse by the other parent.
- Keep or make copies of signed receipts or credit card charges for alcohol by the other parent.
More formal actions you can take to prove substance abuse in a Texas custody case are:
- EtG Testing – Laboratory tests that determines chronic or binge drinking via urine, hair, and nail samples.
- PEth Testing – Laboratory tests that find chronic or binge drinking via blood testing.
- Soberlink – A wireless breathalyzer that monitors a person’s blood alcohol content and sends immediate results to the other parent and the lawyers.
- Witness Testimony – Witnesses who have seen the other parent abusing, engaging in dangerous or violent behavior while abusing, or have heard the other parent admit to an abuse problem can serve as compelling evidence in court.
SAPCRs and Modifications to Child Custody Rulings Due to Substance Abuse in Texas
A suit affecting the parent child relationship (SAPCR) can be used in Texas to modify existing custody orders when a parent is abusing drugs or alcohol.
To file an SAPCR, the child must have lived in Texas for at least the last six months (or since birth), or the child’s home state is Texas and they have been gone less than six months. If one of these conditions is met, you must file your SAPCR case in the county, where the child lives or lived.
A SAPCR generally involves the child’s birth parents, but other parties who have a vested interest in each child’s well-being can also file for a SAPCR. Examples include, but are not limited to:
- Legal guardians
- Foster parents
- Grandparents who meet certain requirements
- Department of Family and Protective Services, or other authorized government entities
- A man claiming to be the father
- Another individual with visitation rights
Involving Child Protective Services (CPS)
If a child’s welfare is compromised due to a parent’s drug or alcohol abuse, child protective services can be contacted to open an investigation. If the accusations are determined to be true, CPS can enact the following measures:
A Safety Plan: Per childsafety.gov, “This written agreement, developed together with the child protective services caseworker and the family, clearly describes the safety services that will be used to support families in building protective capacities. Protective capacities are caregiver strengths that help to buffer and support families. Following the safety plan, families and parents work to take action to eliminate or mitigate threats to the child’s safety.” Safety plans can trump court orders.
Removal of the Child: CPS can take possession of a child if they determine that child is in imminent danger.
Can You Restore Your Child Custody Rights if they’re Removed do to Drug or Alcohol Abuse in Texas?
Texas courts will try to try to sustain relationships between parents and children when safe and possible. Therefore, if your custody rights have been reduced or stripped, you can restore them if the court finds you have made significant improvements during recovery. A family lawyer can help if you’ve undergone treatment and are looking to restore your custody rights.
3 Resources for Parents Struggling with Drug or Alcohol Abuse in Texas
The following resources provide educational materials and contact information for parents struggling with substance abuse in Texas:
- Texas Health and Human Services – https://www.dshs.texas.gov/substance-use-action-plan
- Substance Abuse and Mental Health Services- https://www.samhsa.gov/families
- Live Another Day – https://liveanotherday.org/best-rehab-centers/texas-tx/
Contact Carrington Smyth PLLC today to learn more about the consequences of drug or alcohol abuse in Texas.