Families experiencing divorce have ongoing hurdles that they must overcome, especially when children are involved. Sometimes, a parent may turn to drugs or alcohol to try and cope with their issues. When this happens, children can be endangered.

Under normal circumstances, California law allows both parents time with their children, absent any risk factors such as abuse, neglect or domestic violence. However, abuse of drugs and alcohol can sometimes be hard to prove, even while it compromises the parent’s ability to properly care for their children.

If you suspect that your ex-spouse is abusing drugs or alcohol, of course you want to do what is best for your children. There are multiple ways that the situation could be handled, but ultimately, if you believe it is in the best interest of your children to reduce the time they spend with the drug-abusing spouse, you will need to prove your case to the courts.

California Law Requires Proof of Abuse

Before any court will take away the rights of a parent, they will require proof of any allegations of drug or alcohol abuse. It is best to consult an experienced family law attorney as to how to go about proving the abuse. Some things you may want to consider are:

  • Keeping written records of dates and times when your ex-spouse appeared to be intoxicated;
  • Maintaining a file of correspondence that may indicate that your spouse was intoxicated or otherwise under the influence of drugs or alcohol;
  • Saving pictures or video that your ex-spouse may have posted on social media sites, where your spouse appears to be intoxicated or abusing drugs or alcohol; and
  • Gathering witness statements of your ex-spouse’s substance abuse.

Bringing a Custody or Visitation Proceeding in California

If you wish to limit your ex-spouse’s visitation or custody due to substance abuse, you may do so based on California Family Code Section 3041.5. In this proceeding, you will present your evidence of substance abuse to the court. If the court finds that the preponderance of the evidence shows that there is “habitual, frequent, or continued illegal use of controlled substances or the habitual or continual abuse of alcohol” by the co-parent, then they may order drug testing of that individual.

Depending on the outcome of the testing, the court may order supervised visitation, rehabilitation for the co-parent, or other modified child custody arrangements.

Best Interests of the Child Are Always Considered

California Family Code Section 3011 mandates that the courts take into account the best interests of the child in making custody and visitation decisions. Factors that the court must consider include:

  • The health, safety and welfare of the child; and
  • Any history of abuse by the parent against the child or the other parent.

If you think that your ex-spouse is abusing drugs or alcohol, or is in any way endangering the health and welfare of your child, contact an experienced family law attorney immediately. Give us a call at 714-542-6200 or fill out an online contact form to schedule a free 30-minute consultation with an experienced California family law attorney.