When your child’s other parent struggles with drug or alcohol addiction, your first priority is keeping your children safe. Substance abuse is a serious factor in custody decisions, but courts don’t automatically grant full custody to the sober parent. Understanding how courts evaluate these situations—and what evidence you need—can help you protect your children through the legal system.
This article is for informational purposes only and does not constitute legal advice. Laws vary significantly by state.
Quick Answer
You can seek full custody (sole legal and physical custody) based on your ex’s substance abuse, but you’ll need evidence that the addiction puts your children at risk. Courts focus on the child’s best interests, not punishing the addicted parent. You may be able to obtain sole custody, supervised visitation, or court-ordered drug testing. The specific outcome depends on your state’s laws, the severity of the addiction, and the evidence you present.
How Courts View Substance Abuse in Custody Cases
The Best Interests Standard
All states use the “best interests of the child” standard for custody decisions. Substance abuse is one factor courts consider, but it’s weighed alongside many others:
| Factor | How Courts Evaluate |
|---|---|
| Nature of the addiction | Type of substance, severity, duration |
| Impact on parenting | Does it affect the parent’s ability to care for the child? |
| History of treatment | Has the parent sought help? Are they in recovery? |
| Incidents involving the child | DUIs with child present, neglect, dangerous situations |
| Current sobriety | Is the parent actively using or in stable recovery? |
| The child’s relationship | Existing bond between child and parent |
What Courts Won’t Do
Courts generally won’t:
- Automatically deny all custody or visitation for substance abuse
- Permanently terminate rights based solely on addiction
- Ignore a parent’s recovery efforts
- Consider past addiction if the parent is now sober and stable
Courts try to maintain the child’s relationship with both parents when safely possible.
What Evidence Do You Need?
To limit custody based on substance abuse, you’ll need concrete evidence. Courts won’t act on accusations alone.
Strong Evidence
| Evidence Type | Examples |
|---|---|
| Criminal records | DUI/DWI arrests, drug possession charges, convictions |
| Police reports | Domestic incidents, wellness checks, calls involving substance use |
| CPS records | Child Protective Services investigations, findings |
| Medical records | Hospital records documenting overdose, treatment admissions |
| Drug test results | Failed court-ordered tests, positive results from treatment programs |
| Photos/videos | Parent visibly intoxicated, drug paraphernalia visible |
| Text messages/emails | Admissions of drug use, discussions of being impaired |
| Witness statements | Family members, neighbors, teachers who observed concerning behavior |
Documentation You Should Maintain
Start documenting now:
- Dates and times of concerning incidents
- Specific behaviors you observed
- Who else witnessed the incident
- How your children reacted or were affected
- Any communication with your ex about their substance use
Types of Custody Arrangements
Depending on the evidence and circumstances, courts may order various arrangements:
Sole Physical Custody
The children live primarily with you. Your ex may have visitation, but you’re the residential parent.
Sole Legal Custody
You make major decisions about the children (education, healthcare, religion) without needing your ex’s agreement.
Supervised Visitation
Your ex can see the children, but only with a third party present. Supervisors may be:
- Professional supervision services
- Court-approved family members
- Trained volunteers
Therapeutic Visitation
Visits occur with a mental health professional who can assess the parent-child interaction and the parent’s stability.
No Visitation (Rare)
Courts only deny visitation entirely when contact would seriously endanger the child. This is uncommon and usually temporary.
Court-Ordered Safeguards
Courts have various tools to protect children while preserving the parent-child relationship:
Drug and Alcohol Testing
- Random testing – Unpredictable tests to catch active use
- Regular scheduled testing – Consistent monitoring
- Hair follicle tests – Detect use over past 90 days
- Urine tests – Detect recent use
- EtG tests – Detect alcohol use within 80 hours
- Continuous alcohol monitoring (SCRAM bracelet)
Sobriety Requirements
Courts may condition custody or visitation on:
- Maintaining sobriety for a specified period
- Completing a treatment program
- Attending AA/NA meetings
- Following a treatment plan
Graduated Custody
A structured plan that increases parenting time as the parent demonstrates stability:
- Supervised visitation only
- Unsupervised short visits
- Overnight visits
- Weekend custody
- Eventually, more custody if warranted
Modifying an Existing Custody Order
If you already have a custody order but circumstances have changed, you can file for modification.
Requirements for Modification
Most states require you to show:
- Material change in circumstances – Something significant has changed since the last order (e.g., your ex has relapsed, had a DUI, or new incidents have occurred)
- Modification serves the child’s best interests – The change you’re requesting will benefit or protect the children
Emergency Modifications
If your child is in immediate danger, you may seek:
- Emergency custody order – Temporary change until a full hearing
- Temporary restraining order – Limiting contact in dangerous situations
- Ex parte order – Order issued without the other parent present (for genuine emergencies)
Frequently Asked Questions
Will my ex definitely lose custody because of drug addiction?
Not necessarily. Courts consider whether the parent can safely care for the children. A parent in stable recovery may retain custody. Active addiction that endangers children will likely result in custody restrictions, but courts prefer to keep both parents involved when safe.
Can I request drug testing?
Yes. You can request the court order drug testing as part of custody proceedings. Be prepared to explain why testing is warranted. Courts may also order both parents to be tested to be fair.
What if my ex refuses to take a drug test?
Refusing a court-ordered test can have serious consequences. Courts may:
- Draw negative inferences from the refusal
- Impose custody restrictions
- Find the parent in contempt
Do I need a lawyer?
While not required, a family law attorney is strongly recommended for custody cases involving substance abuse. These cases involve complex evidence issues, court procedures, and high stakes for your children.
Can my ex’s recovery allow them to regain custody?
Yes. Courts recognize that addiction is a disease and recovery is possible. A parent who completes treatment, demonstrates sustained sobriety, and shows they can safely parent may gradually regain custody through court modification.
When to Contact a Lawyer
Consult a family law attorney if:
- Your ex’s substance abuse is putting your children at risk
- You want to modify an existing custody order
- Your ex has been arrested or charged with drug/alcohol offenses
- CPS is involved with your family
- You need to request drug testing or supervised visitation
Last updated: January 2025
This article provides general information about custody and substance abuse in the United States. Laws vary by state and individual circumstances. Consult with a qualified family law attorney in your state for advice specific to your situation.
