If a couple with children divorces and one parent has a history of drug use or abuse, it can affect the child custody determination process. There are numerous variables involved in the case, any of which can affect the outcomes. Here’s what you need to know.

What Do California Courts Take Into Consideration Regarding Drug Use in Child Custody Cases?

What California courts look for first and foremost in any child custody case is what’s in the child’s best interests. One of the primary best interests will be the child’s safety. If one parent has a history of drug use or abuse, the court is going to be concerned as to whether or not that parent can provide a safe environment for the child.

That environment includes the home the child lives in, but it also includes things such as whether or not the parent might drive impaired with the child in the car or whether the parent is too impaired to take the child to a routine medical checkup.

What Can California Courts Require of a Parent With a History of Drug Use?

If the court investigates one parent and finds drug use that qualifies as abuse, it can impose several restrictions on that parent when it comes to time spent with their child, including the following.

  • The court can order that the parent may not have physical child custody.
  • It can order that the parent may not have visitation with the child unless the parent successfully completes a drug treatment program and is willing to submit to drug testing.
  • It can also order that the parent may only have visitation with the child when a third party supervises the visitation.

Can a Parent With a History of Drug Use or Abuse Ever Be Granted Physical Child Custody?

It’s not impossible but it’s also not easy. Because the courts will view drug use or abuse as highly problematic in custody cases, they’ll want significant assurance that the parent has overcome the drug use and can be trusted to be drug-free when visiting the child before considering granting actual custody. Among the steps the court may take before setting up unrestricted visitation or considering physical custody:

  • Demonstrated ongoing participation in a drug-free maintenance program
  • Certificates or other documents attesting to the successful completion of a drug rehabilitation program
  • Medical records and testimony from medical professionals.

What Else Do Courts in California Examine in Child Custody Cases?

As noted above, the courts look primarily at what’s in the child’s best interests, and safety is a significant factor. But it isn’t the only factor. These are some of the conditions the court will examine when determining who should have physical custody.

  • Age, gender, and physical and mental health of the child
  • The child’s ties to their home and community (friends or close family nearby, school, etc.)
  • The financial ability of each parent to provide basic needs (food, clothing, shelter, medical care, education) to the child
  • The bond between the parent and the child
  • Whether or not the child is currently receiving a good education
  • Whether either parent disparages the other or seeks to break down the relationship between the other parent and child

Children 14 and older who are deemed able to offer an informed opinion may be asked which parent they’d prefer to live with. That doesn’t automatically guarantee that parent custody, as the judge is looking at multiple factors.

Does Drug Use Lead to No Custody at All?

It’s important to understand that California courts recognize more than one type of custody. A parent with drug use issues may be prevented from one type of custody but not necessarily the other.

  • Physical custody. This is what it sounds like: Which parent lives with the child all or most of the time. There are two types of physical custody.
    • Sole physical custody. One parent has physical custody of the child at all times, and the other parent has no custody rights.
    • Joint physical custody. In this situation, the parents take turns living with the child. How that’s divided depends on each family’s specific needs. Sometimes the child goes back and forth between the parents, while at other times, the parents rotate in and out of one living space so the child doesn’t have to move. This is usually preferred in California as long as it’s deemed in the child’s best interests.
  • Legal custody. This has nothing to do with where the child lives. Instead, it involves who makes the critical decisions for the child’s upbringing, including education, medical care, religious upbringing (if applicable), and extracurricular activities. These aren’t the little day-to-day decisions, such as which fruit the child will have in their lunch bag.
    • Sole legal custody: One parent makes all the decisions, and the other parent has no legal right to be involved.
    • Joint legal custody: The parents must share the decision-making responsibility for the significant decisions. 

What Should I Do if My Ex Has a History of Drug Use and Wants Custody of Our Children?

Call the Sarieh Law Offices at 949-542-6209 (Newport Beach) or 714-542-6200 (Santa Ana) for a free 30-minute in-depth case evaluation. This is a complex situation, and it could benefit from working with our team of experienced, knowledgeable child custody attorneys. We understand that you’re concerned for your child’s safety and want the best living situation for them. Every child custody case is unique, even more so when drug use is part of the scenario. Call us today to learn what your options may be.