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Julia M. Garwood • Certified Family Law Specialist

How Does Substance Abuse Affect Child Custody & Visitation Rights?

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abusive drugs and alcohol Of primary importance in any divorce is the well being of the children. Therefore, drug and alcohol abuse by a parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship, can certainly impact California child custody and visitation rights. It’s important that issues of substance abuse are addressed fully as grounds for limited custody and visitation rights. While the safety of the children is always a concern for the State, it doesn’t necessarily mean that a parent who is suffering from addiction will be automatically disqualified from custody and visitation rights. There are processes in place that allow the court to investigate a parenting situation that is brought into question. Many states have even expanded their definition of child abuse and neglect to include exposure to illegal substances, with some violations resulting in a felony charge.

If you are currently dealing with a partner that is abusing drugs or alcohol, and are considering divorce or looking to limit your ex-spouse’s custody and visitation rights due to substance abuse, there are some formalities to be aware of.

The Courts Need Proof (Substantiated Claims)

Unless there is definitive proof available, the courts are legally unable to restrict parental rights. However, substance abuse can have a direct affect on the court’s ruling in both child custody and visitation privileges. In a custody or visitation proceeding, Section 3041.5(a) of the California Family Code allows the court to require one or both parties to undergo testing for illegal use of alcohol and/or a controlled substance if there is a determination that there is a habitual or frequent use. In order to establish whether one or both parents are a concern to the safety of the children, the court may order a 730 evaluation.

730 Evaluation

A 730 Evaluation is a court order for evaluations, investigations, and assessments to assist the court in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. Both visitation and custody rights will often directly reflect the findings in these evaluations. The court may issue a 730 Evaluation for several reasons, many of which have a direct correlation with one another:

    • concerns about substance abuse;
    • concerns about child abuse (both physical and emotional);
    • parenting that may have a negative impact on the child; and/or
    • custodial arrangement disagreements.


If the court deems that a 730 Evaluation is what your case needs, the court will assign a forensic psychologist. The evaluation must include: a written explanation of the process that clearly describes the purpose of the evaluation, the procedures used and time required to gather and assess the information, scope of the evaluation report, limitations on the confidentiality of the process, as well as cost and payment responsibility for the evaluation. The evaluation process enables the reviewer to view police records, observe parent-child interaction, to interview all parties involved (to include age-appropriate interview and observations with the child), collect relevant corroborating information, and consult with other experts.

If the court does not deem that a 730 Evaluation is necessary, yet one party has concern over the substance abuse of the opposing party, it is important for that individual to express their concern to the Court in a declaration. This is a formal opportunity to present your concerns and any evidence you may have that supports your claim.  This would include past behaviors that you present to the court and/or credible witnesses that you can present to help back up your accusation. The Court can consider evidence such as emails, text messages or any other viable evidence. Family Court Service (an arm of the Court) usually informs the Court of all past criminal cases and child protective services involvement, if any.

This evidential information can play a pivotal role in the courts decision due to the fact that Section 3041.5(a) of the California Family Code also states that the court is only authorized to use the least intrusive method of testing for the illegal use of controlled substances or the habitual or continual abuse of alcohol. This form of testing can be flawed in its ability to detect substances that have been masked or not used within the 72 hour timeframe prior to testing.

It is also important to remember that if substance abuse is discovered in the courts 730 Evaluation alone and is not supported by other evidence, it may not provide the court with the ability rule definitively against the abuser(s).

Section 3041.5(a) – A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors. The court shall also consider any reports provided to the court pursuant to the Probate Code.

Monitor The Situation – Even After A Court Determination

The result of a court’s ruling is based on the information they have available to them at that time. If the other party obtains custody and visitation rights but neglects to address a substance abuse problem, it is important for you to continue to monitor the situation. Help the other party understand the importance of sobriety when your children are present and express your concerns to your family law attorney. They will be able to advise you about supporting your grounds for limited custody and visitation rights and help present your case if any evidence becomes available that may change the court’s decision (or lead to the initial ruling).

The County of San Diego offers many resources for alcohol and substance abuse support. To access referrals or call the Crisis Line, phone 1-888-724-7240, or visit their health services ADS website page for more information.

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