Alcohol and substance abuse are one of the leading causes of divorce in America. Parents often make the decision to leave a spouse who struggles with addiction, not for themselves but for the safety and well-being of the children. But what happens when a parent who was a functional addict during the marriage falls off the wagon after the divorce?
How can the non-addicted parent keep the children safe when the addicted parent relapses? How can parents advocate for restrictions on parental access when one senses – based on past experiences during the marriage – that the addicted parent has faltered, though no immediate proof exists? Will the non-addict parent be accused of malevolent motivations – using the marital sins of the addict-parent into perpetuity for reason of spite, rather than genuine concern for child safety?
Here, we discuss a few tips to help parents of divorce – both the addicted parent and the non-using parent – involved in child custody and parental access disputes to effectively address the issue.
FOR THE ADDICT/RECOVERING ADDICT PARENT
1. Substance abuse or addiction is NOT per se child abuse. Alone, addiction is insufficient to warrant a finding of child abuse or neglect, according to the Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App Div 2011). It is the impact of the parent’s conduct on the child that determines whether a finding of child abuse or neglect is warranted under Title 9. Be wary the non-using parent’s attempts to over-pathologize your addiction and its impact on the child. A harm is not to be presumed, and the non-using parent continues to have the burden of proving any harm alleged to have occurred, and link that harm to your actions or omissions.
But, despite #1:
2. Be wary the strictly formulaic legal defense. While the party making an accusation bears the burden of proving that accusation at trial, judges tend to be particularly cautious where substance abuse is alleged. This caution is heightened by the extent to which objective data supports the accuser’s claim of risk resulting from your addiction. That means DUI’s, third party accounts of mid-day intoxication, and substance-related impairment to employment or other affiliations, will increase the likelihood of a protective order being issued pendente lite, limiting your access to the child. To the extent that your response to such accusations against you is to “Prove It!,” a judge is apt to discredit your response.
3. Owning your problem is typically the most effective solution. If you know your spouse will raise this issue as a concern, head it off at the pass by securing a Substance Abuse Evaluation (SAE). A SAE should be performed by a Licensed Clinical Alcohol and Drug Counselor (LCADC) and should contain the industry standard quantitative tests, such as the Michigan Alcohol Screening Test (MAST) and the Substance Abuse Subtle Screening Inventory (SASSI). A well-written report will do wonders to stave off baseless claims, as well as to provide reasoned recommendations for legitimate issues before the other side can exaggerate a minor issue.
FOR THE NON-ADDICT PARENT
1. The devil is in the details. There are judges who will turn a deaf ear to your claim that your spouse has an alcohol problem, especially if you and your spouse do not see eye to eye on most issues in your divorce. To prove your claim, you must do more than state your general “concerns.” Identify how much alcohol was used during the marriage, note how consumption has progressed over time, and specifically tie the usage to risk – both past behaviors culminating in risk (i.e., attempting to drive while intoxicated, passing out while caring for children, etc.) and reasonably foreseeable future behaviors (i.e., DUI’s, failing to provide for children’s basic needs, etc.).
2. You are a part of the solution. Even if you sought no assistance to deal with your spouse’s addiction during your marriage, your seeking guidance and resources post-separation is critically valuable for you and your children. Understanding your spouse’s struggle with addiction will help you approach them with a modicum of empathy that will translate to the court, further supporting your perspective that your spouse poses a risk to the children and reducing the chance that your concerns will be devalued.
3. Understand your children’s cognitive dissonance. Children are very perceptive. Even if you never discussed the other parent’s addiction with the children, they recognize when their parents are impaired. Nevertheless, while your child may desire to have their parent well (i.e., sober), they will love them no matter what. Respect your child’s right to love their parent. At the same time, protect the natural affinity your child has for their parent by not putting the child into a position to be a spy or reporter of their parent’s misdeeds. Your child should understand that they can contact you if ever they feel unsafe – whether with their parent or otherwise – but they should not be encouraged to watch their parent like a hawk and report back any suspicions.
Substance abuse is a difficult issue to tackle, even for in-tact families. If you or your spouse have an addiction, child safety must be your priority, as it will be the court’s priority. But, having an addiction does not inherently render a parent incapable of safely parenting a child. Caution must be exercised by both parents when going through a divorce to keep the focus on what’s most important. If you believe that your child may be the subject of child maltreatment, you should consult an attorney who specializes in handling child abuse and neglect issues in family law litigation.
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