Child Custody – What Happens When a Parent is a Drug User?

One of the most contentious issues between divorcing parents is child custody. Even though it can be difficult, Georgia law prefers divorcing parents to make their own parenting plan, with the assistance of their attorneys. The plan must be approved by the court who will make certain the plan is in the best interest of the children.

When there are allegations that one parent uses drugs, the court will evaluate the entire case, using the same “best interest of the children” standard. There are no presumptions as to which parent is more likely to get full custody or of what form of custody is the best. Just because one parent is allegedly using, has used in the past or is currently using drugs does not automatically disqualify them from having one form of custody. In making custody decisions, a judge, not a jury, considers “all relevant evidence.”

Impact of Drug Use on the Court’s Custody Decision

When one of the parents is a drug user, whether addicted or not, the court has a difficult decision to make. It must balance the problem of the parent who is using, or has a history of using drugs, with the child’s right to have a relationship with both parents. Georgia law provides the court with a list of factors to use as a guide when making custody decisions.

Statutory factors the court considers in making child custody decisions

In determining what is in the best interest of the child, Georgia Code, Section 19-9-3 lists a number of factors a court may use when making child custody decisions. When a parent is a drug user, some factors may receive particular attention, including:

  • The mental and physical health of each parent.
  • The parents’ involvement in the child’s life.
  • The love and affection and bond between the parent and the child.
  • The capacity of each parent to provide love and affection to the child.
  • The capacity of the parent to provide the necessary care for the child including food, shelter, clothing and necessities of daily living.
  • Parent’s history and performance in taking care of the child.
  • The criminal history of either parent.
  • Any evidence of substance abuse by either parent.
  • Has the drug using parent ever specifically placed the children in harm’s way?
  • Does the drug using parent become violent when using?
  • Any other relevant factors.

Other relevant factors the court will consider

The court will consider all evidence concerning the impact of the drug use. Some examples include:

  • Is the parent really using drugs, or is just an allegation by the other parent in an attempt to obtain sole custody?
  • Have there been criminal charges filed relevant to the drug use?
  • Has the drug using parent ever put the children in physical danger?
  • Is the drug using parent still using? If so, does the using parent have documentation of any ongoing rehabilitation efforts along with evidence of a support system of friends and family?
  • How recent was the drug use? If it was recent, it will have more of a negative impact on the drug-using parent who is trying to obtain custody. If it was a long time ago, and the parent can show evidence of rehabilitation, it may have little effect on the custody decision.
  • Why a continuing relationship with the children is still in the best interest of the child despite the drug use.

Possible Court Orders

The court has the discretion to fashion an order that will allow the continuance of the parent/child relationship, while at the same time, make certain the safety of the child is protected. If a criminal case is pending, the court may postpone the family court proceedings until that case is resolved.

The court may award primary physical custody to the non-using parent with the using parent receiving parenting time. Likely, the using parent will have supervised parenting time with a graduated plan to allow for unsupervised parenting time. Further, the using parent may be required to pass a drug test before being allowed parenting time with the child. The court may even order the using parent to show proof of participation in substance abuse treatment program. Finally, the court may agree to re-evaluating the custody order in a certain period of time so the using parent will have time to resolve their drug problem.

Whether you are a parent who has a drug use problem and are fighting for custody of your child or children, or you are a parent alleging the other parent has a drug use problem, contact our family law child custody attorneys at Georgia Trial Attorneys. We offer a free consultation.


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