Drug use or alcohol addiction is taken very seriously by the court in child arrangement cases, and if a parent has such a history, it will certainly make it more difficult to gain child custody. But it is not impossible. The family court’s first consideration is in relation to the child’s welfare and safety. So protecting them from physical and psychological harm is fundamental to any decisions it makes.
Drug use or alcohol addiction is taken very seriously by the court in child arrangement cases, and if a parent has such a history, it will certainly make it more difficult to gain child custody. But it is not impossible. The family court’s first consideration is in relation to the child’s welfare and safety. So protecting them from physical and psychological harm is fundamental to any decisions it makes.
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The onus is on a parent to prove that they can take good care of their child, although in doing so, they are likely to be required to demonstrate they are the better option of the two parents. Particularly if they have a history that involves drug use or alcohol addiction, and the other parent does not.
What does the court take into account when making a decision?
When the issue of substance or alcohol misuse is raised, the court will enquire about the current circumstances and home environment. They will want to know if there is an ongoing problem, whether the alleged addiction was in the past, or perhaps a one-off mistake. They may order a drug or alcohol test be carried out either as a one-off or as part of a regular series of testing to prove a period of sobriety. The court will also want to know what steps have been, or are being taken, to ensure there is no relapse.
The court will take into account the type of substance and amount being taken. For example, smoking marijuana at a party where children are not present is unlikely to influence the decision regarding child arrangements to the same extent as a parent with a heroin addiction. In the same way, a parent who is regularly drinking in the pub until late into the night would not be viewed favourably by the court in deciding a disputed case.
Lying about a previous substance misuse problem can damage your case and make the court question your integrity. The judge may also view you as an unreliable witness and, as a result discount other areas of your case.
Ultimately, the court will always start from the presumption that it is in the child’s best interests to have an ongoing relationship with both parents. In rare cases, where both parents are unable to provide a stable home environment because of drug or alcohol abuse, the court may order a child to be removed from them to live in care or with another family member.
The court might be interested in the following questions:
- Does the parent have a historic drug/alcohol problem?
- What is the severity of the drug/alcohol use?
- Have they taken drugs in front of the children?
- Are there any drugs kept in the environment where the child will live/where contact is taking place?
- Have they taken drugs shortly before, or during, contact?
- Are they seeking professional support?
What evidence do I need to prove my ex is taking drugs or abusing alcohol?
As stated above, the judge will base their decision on the evidence before them and what is in the best interests of the child. Alleging that a parent has a drug or alcohol problem is not the same thing as proving it. Evidence will be key if there is a dispute.
Concerns about drug or alcohol misuse can be raised during the court proceedings at any time, however, any safeguarding concerns should be raised as early as possible. The court may order your ex to take a hair strand alcohol and drug test, that shows the extent to which they have used certain substances over a set period of time.
A hair test can detect a person’s substance use for up to a year, depending on the length of the hair, with each centimetre showing around one month’s worth of drug use. If the person is bald, body hair, fingernail, urine, and blood samples can be taken instead. If your ex refuses to agree to the test, or fails to turn up to an arranged test, the court cannot force them to do so, but can draw adverse inferences from their refusal.
If the test shows evidence of repeated drug and alcohol use, the court will consider the safeguarding impact and adjust the child arrangements order according to the level of risk it believes is an issue.
Regarding costs, if the parties are in receipt of legal aid, then the costs will be split equally between their respective public funding certificates. If only one party has legal aid, then costs will be borne solely by their certificate. Where both parties are paying privately, or are not legally represented, they will usually have to bear the costs between them. Tests range in price from around £100 – £600 depending on the level and type of test required.
Will the court stop all contact between a child and parent if there is a positive drug test?
Whilst a positive drug or alcohol test will be a key determining factor, it does not automatically mean that the court will order contact to stop. However, illegal drug use will be taken extremely seriously, as this is a real welfare concern. As with all child arrangement matters, the court will consider factors within Section 1(3) of the Children Act 1989, commonly referred to as the “welfare checklist”. If there is evidence that one party has been abusing drugs or alcohol regularly, then the court will probably be concerned the parent is unable to provide a suitable and safe environment for the child.
More specifically, drug use or alcohol addiction could foreseeably prevent the parent from meeting the child’s basic needs, and calls into question the capabilities under the welfare checklist of that parent to keep the child safe. If one parent is a substance misuser, the parent could put that child at risk of direct harm, particularly if they take drugs in the presence of a child. On that basis, the court may therefore decide to restrict direct and unsupervised contact, and want to know whether the risks can be managed before moving forward.
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