When your child’s other parent struggles with drug or alcohol addiction, your primary concern is your child’s safety. Courts take substance abuse seriously in custody decisions, but they don’t automatically grant full custody to the sober parent. Understanding what evidence you need and how courts evaluate these situations can help you protect your children.
Quick Answer
Yes, you may be able to get full custody (sole legal and physical custody) based on your ex’s substance abuse. Courts decide custody based on the best interests of the child, and all states consider a parent’s drug or alcohol use in that determination. However, you’ll need concrete evidence—not just allegations—that the addiction puts your children at risk.
How Courts Evaluate Substance Abuse
Factors Judges Consider
| Factor | What Courts Look At |
|---|---|
| Nature of addiction | Type of substance, severity, duration |
| Impact on parenting | Does it affect ability to care for the child? |
| Treatment history | Has the parent sought help? Are they in recovery? |
| Incidents involving children | DUIs with child present, neglect, dangerous situations |
| Current sobriety | Active use vs. stable recovery |
| Support system | Family support, AA/NA meetings, structured life |
What Courts Won’t Do Automatically
- Deny all custody or visitation solely for addiction
- Permanently terminate rights based on substance abuse alone
- Ignore genuine recovery efforts
- Consider past addiction if the parent is now stable and sober
Courts try to maintain both parent-child relationships when safely possible.
Evidence You’ll Need
Strong Evidence
- Criminal records: DUI/DWI arrests, drug possession charges, convictions
- Police reports: Domestic incidents, wellness checks involving substance use
- CPS records: Child Protective Services investigations and findings
- Medical records: Hospital admissions for overdose, treatment records
- Failed drug tests: Court-ordered or treatment program results
- Photos/videos: Parent visibly intoxicated, drug paraphernalia visible
- Text messages/emails: Admissions of drug use, discussions of being impaired
- Witness statements: Family, neighbors, teachers who observed concerning behavior
What Typically Isn’t Enough
- Your word against theirs without supporting evidence
- Past substance abuse with no current evidence of problems
- Occasional recreational use that doesn’t affect parenting
- Assumptions based on appearance or rumors
Possible Custody Outcomes
Sole Physical Custody
Children live primarily with you. Your ex may have visitation rights, 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 only with a third party present:
- Professional supervision services
- Court-approved family members
- Trained volunteers
Court-Ordered Drug Testing
- Random testing to catch active use
- Hair follicle tests (detect 90-day history)
- Urine tests (recent use)
- EtG testing (alcohol within 80 hours)
- SCRAM bracelet (continuous alcohol monitoring)
Graduated Custody Plans
Courts may create structured plans that increase parenting time as the parent demonstrates stability:
- Supervised visitation only
- Unsupervised short visits
- Overnight visits
- Weekend custody
- Expanded custody if warranted
How to Seek Custody Changes
If You Have No Existing Order
- File for custody in family court
- Present evidence of substance abuse
- Request appropriate restrictions
If Modifying an Existing Order
You generally must show:
- Material change in circumstances: Something significant has changed (relapse, new incidents, DUI)
- Modification serves child’s best interests: The change you’re requesting will protect the children
Emergency Modifications
If your child is in immediate danger:
- Emergency custody order: Temporary change until full hearing
- Temporary restraining order: Limit contact in dangerous situations
- Ex parte order: Issued without other parent present for genuine emergencies
Working with CPS
When to Contact CPS
- You witness abuse or serious neglect
- Your children report concerning incidents
- Your ex drives intoxicated with the children
- There’s domestic violence in their household
- You believe the children are in immediate danger
CPS Investigation Benefits
- Professional assessment of the situation
- Official documentation for court
- Recommendations that carry weight with judges
- Possible court intervention if warranted
Warning: Never File False Reports
False CPS reports can:
- Result in criminal charges against you
- Destroy your credibility with the court
- Harm your custody case
- Traumatize your children
What to Expect in Court
Custody Evaluations
Courts may order evaluation by a mental health professional who:
- Interviews both parents and children
- Reviews relevant records
- May conduct psychological testing
- Observes parent-child interactions
- Makes recommendations to the court
Guardian ad Litem
The court may appoint a representative for your children who:
- Investigates independently
- Interviews relevant parties
- Recommends what’s in the children’s best interests
Protecting Your Children While Awaiting a Decision
Create a Safety Plan
- Teach children how to call you if they feel unsafe
- Identify other trusted adults they can contact
- Age-appropriate discussions about not getting in cars with impaired drivers
Don’t Violate Court Orders
Even if worried, don’t:
- Withhold court-ordered visitation
- Keep children from the other parent without court permission
- Take children out of state without authorization
These actions can backfire and hurt your case. If there’s genuine danger, seek an emergency court order.
Frequently Asked Questions
Will my ex definitely lose custody because of addiction?
Not necessarily. Courts evaluate 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 restrictions, but courts prefer to preserve relationships when safely possible.
Can I request drug testing?
Yes. You can ask the court to order testing. Be prepared to explain why it’s warranted. Courts may order both parents to be tested for fairness.
What if my ex refuses a court-ordered drug test?
Refusal can have serious consequences. Courts may draw negative inferences, impose custody restrictions, or find the parent in contempt.
Can my ex regain custody after recovery?
Yes. Courts recognize addiction as a disease and recovery as possible. A parent who completes treatment, demonstrates sustained sobriety, and shows they can safely parent may gradually regain custody through modification.
What if I also struggled with addiction but am now sober?
Courts evaluate both parents. Your documented recovery can be a strength if you have sobriety evidence, stable lifestyle, and are providing good care. Be honest—your history may come out, and credibility matters.
When to Contact a Lawyer
Consider consulting 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 for drug or alcohol offenses
- CPS is involved with your family
- You need to request drug testing or supervised visitation
- You’re facing an emergency custody situation
Many family law attorneys offer consultations for custody matters. Given the stakes for your children, professional guidance is often essential.
