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How Alcohol and Drug Allegations Can Impact Your Child Custody Case


Child custody is often the most critical part of a divorce case for the parents involved. No parent wants to lose custody of his or her child. However, the Colorado courts will make a decision based on the child’s best interests. Unfortunately, your spouse may take a custody hearing as an opportunity to raise grounds to prove that you are an unfit parent. One such ground in Colorado is substance abuse. Don’t face this battle alone, speak to a Fort Collins child custody attorney today.

If your ex-spouse is raising alcohol or drug claims against you, the courts must take these allegations seriously. A judge may request evidence of substance abuse, or send investigators to look into the issue further. If the allegations are at all truthful, and the courts deem your substance abuse as a possible danger to children, it could negatively influence your likelihood of securing child custody.


Types of Custody Arrangements in Colorado

Colorado law now refers to child custody as parental responsibilities. In Colorado, the family courts can assign parental responsibilities according to many different setups. The most common is joint legal custody, or joint parental responsibilities. Joint custody is a shared system, in which both parents divide the amount of time they spend with the child. Both parents will share decision-making responsibilities for major life choices, such as the child’s religion, education, and healthcare.

Joint custody, however, often does not mean a 50/50 split. Splitting parenting time directly in half can be difficult for the child – especially if one parent lives out of state. It is more common for the courts to order a different type of joint custody division, such as 75/25. One parent may have custody during the week, while the other may have the child on the weekends. If parents cannot come up with their own schedule, a judge will make the arrangement for them.

Sole custody is less common, since the courts generally want the child to stay in touch with both parents, whenever possible. Sole custody refers to one parent having 100% of physical and/or legal responsibilities over the child. The other parent may or may not retain visitation rights depending on the situation. The courts typically only grant sole custody if a case involves domestic violence or child abuse.

Grounds for Proving an Unfit Parent in Colorado

A parent who wants full, primary custody of a child in a divorce settlement may try to prove that the other parent is unfit. That way, the courts will have no choice but to award the first parent custody. Different states have different grounds on which the courts will determine a person to be an unfit parent. What could earn you the title of an unfit parent in Colorado?

  • Child abuse or neglect
  • Mental illness
  • Domestic violence
  • Incarceration
  • Drug or alcohol use

If your ex-spouse brings any of these allegations forward during a custody hearing, the judge will most likely ask for evidence supporting the claim. It will then be on your ex-spouse (or his or her attorney) to prove that you do have a history of one of these grounds, and that it could put the life of your child in danger. You could lose child custody if your ex-spouse succeeds in this burden of proof by showing you currently use drugs or alcohol.

How Do the Colorado Courts Determine Custody?

Proving you are an unfit parent is not the only way your ex-spouse may secure primary custody during a divorce case. The Colorado courts examine many different factors when making a custody judgment. The number one factor will always be what is in the child’s best interests, but the full picture will include an analysis of many parts of your life.

  • Your income, education, and job training
  • Your relationship with your child
  • The amount of time you spend with your child
  • How well you understand and respond to your child’s needs
  • Any social issues that could negatively affect the child
  • The attitude the child has toward you
  • The child’s wishes, if he or she is mature enough

Overall, a judge’s goal will be to assess the abilities of both parents, as well as their living situations, to determine what custody arrangement will best serve the child’s interests. If you have a history of alcoholism or drug abuse, this could negatively affect how the courts see your ability to provide a safe home for your child. A substance abuse disorder could ultimately take custody away from you.

What Will the Courts Do After a Substance Abuse Allegation?

If your ex-spouse has raised an alcohol or drug allegation during your Colorado custody case, the courts will most likely order you to submit to immediate drug or alcohol testing. The courts have the right to request a urine screen, blood tests, breath screens, hair tests, or nail tests to find out whether you have substances in your system.

The courts may order different panels for specific drug testing, depending on the allegations against you. A five-panel test, for example, can show traces of marijuana, cocaine, opiates, PCP, and amphetamines, while a 17-panel test can test for 17 different substances. Generally, you will have to pay for your substance-screening test on your own. A positive test result that demonstrates chronic alcohol or drug use could result in a negative child custody outcome.

How Substance Use Can Hurt Child Custody Cases

From a judge’s perspective, intoxicating substances could impact your ability to be a safe, responsible, and present parent. Most courts will not rule in favor of a parent with proven substance use issues during a custody hearing, for fear of the drugs or alcohol negatively impacting the child. The courts may fear that drugs or alcohol could lead to domestic violence, child neglect, or other serious issues.

Suffering a substance use disorder will most likely result in your ex-spouse getting primary or full custody of your child – at least temporarily. The courts may give you the opportunity to join substance education classes and prove your sobriety at a later date. You may have the option to file a Motion for Child Custody Modification with your local courts once you have gotten the substances out of your system and are on the path to recovery. If you can prove you have changed, the courts may award at least partial custody to you.

Most courts in Colorado will require you to prove your sobriety through steps such as submitting to random alcohol and drug testing, or to regular substance monitoring. You may need to complete a recovery program, and bring evidence to your future custody hearings that you have not imbibed drugs or alcohol. Evidence could include chemical tests and the testimony of friends, relatives, or program sponsors.

If your ex-spouse is raising drug or alcohol allegations after the courts have already made a custody decision, the legal process will look different. The spouse may have made these allegations during a hearing to modify the existing custody order. In these cases, the courts may agree to modify the order to either remove custody from you, or to arrange some type of supervised visitation until you can prove you are clean and sober.

What If Neither Parent Is Fit?

If the courts determine that neither you nor your ex-spouse are fit to have custody of children, either due to substance abuse or other issues, your child may end up in the custody of the state. The Department of Child Protective Services may provide a temporary home for your child while you and/or your ex-spouse stabilize your family situation. Your child may go to a trusted friend or family member, or with a foster family or group home until you can prove you are in a position to properly care for your child.

You may regain custody and parental responsibilities over your child after the state has intervened if you can prove that you have changed. Again, the courts may demand to see clean chemical tests or proof that you have completed a substance abuse education program. Follow the court’s instructions on how to regain custody, and you may earn back some or all of your parenting rights.

The Impact of Recreational Marijuana Use on Child Custody in Colorado

As one of the laxest states when it comes to cannabis legalization, Colorado has experienced some of the first significant issues regarding recreational marijuana use and child custody. It is legal to possess and to use certain amounts of marijuana in Colorado recreationally if you are an adult over the age of 21. You do not need a medical card to purchase or consume cannabis within the state. The consumption of cannabis recreationally or medicinally, however, is still against federal law – and it could interfere with child custody during a divorce case.

It does not matter whether you consumed marijuana legally according to the state’s laws. If your ex-spouse brings up a drug allegation for using marijuana, you could lose custody of your child. Most judges will consider the impact your drug use may have on your child, whether lawful or not. The same would be true if you took prescription medications, such as painkillers, that could potentially interfere with your ability to safely care for children. Your use of recreational marijuana will not automatically bar you from custody. Instead, the courts will assess your individual situation.

According to federal regulations, marijuana is a Schedule 1 drug that can pose a danger to children if parents use it irresponsibly. It is likely, therefore, that a judge will view a parent’s use of marijuana negatively when determining child custody – especially if the parent uses it recreationally and not for medicinal purposes. Note, however, that in 2010, a Colorado appeals court ruled that the courts could not deny child visitation rights based on marijuana use, if the parent does not use the substance around his or her child.

How to Improve Your Custody Case

Nationally, parental marijuana use has had mixed impacts on child custody cases. In some cases, it has swayed a judge’s decision and affected custody, while in others the courts have ruled that marijuana use is not negatively affecting the child. The decision in your case would depend on your unique situation and use habits.

While the courts will weigh many factors in its decision, a custody choice will ultimately come down to what is best for the child. To maximize your odds of a favorable outcome, hire an attorney. An experienced attorney may be able to help establish you as a stable parent who is willing to put his or her child’s needs first, even in the face of alcohol or drug use allegations.





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