Often I will get a call from a parent who is worried because a child’s other parent has a substance abuse issue. Sometimes it is a chronic issue, where the non-using parent has known that the other parent drinks too much, abuses marijuana, or uses hard drugs. Sometimes it becomes an acute issue when a parent has been charged with a DUI or had an overdose. In Arizona, a parent who has a substance abuse issue faces legal impediments to having legal decision-making for a child.
Arizona provides that, if the court determines that a parent has abused alcohol or drugs or has been convicted of any drug offence under title 13, chapter 34 within 12 months, there is a rebuttable presumption that sole or joint legal decision making by that parent is not in the child’s best interests. See A.R.S. § 25-403.04. That means that the court will start with a presumption that the parent without a substance abuse issue will have sole legal decision-making. The parent with a substance abuse issue can rebut the presumption against them having legal decision-making by staying out of drug-related legal trouble for five years, undergoing substance abuse screening by an approved agency (along with any recommended treatment as a result of that screening) and/or testing clean for a period of six months of random drug testing. See A.R.S. § 25-403.03(B).
A parent who has been abusing alcohol or drugs will also face restrictions on their parenting time. Frequently, when the other parent brings the issue to court, the parent with the substance abuse issue will have their parenting time suspended or limited to supervised parenting time only, pending testing clean on random drug tests for a period. A substance abuse issue is not a reason for the court to eliminate a parent’s parenting time. Still, the court will order restrictions on parenting time to ensure that the child is safe during that parent’s parenting time.
When the issue is alcohol abuse, the court can order that a parent test negative for alcohol in their system (via breathalyzer) before and even during their parenting time. Sober Link has internet-connected mobile breathalyzer systems that a parent can be ordered to use before and during their parenting time. For example, parents could be ordered to test negative immediately before picking up their child and at set intervals during their parenting time. Although such testing can be impose a cost on the parenting ordered to comply, it also allows that parent to continue to exercise their parenting time while the court and the other parent are assured that the parent under the order is not intoxicated during their parenting time.
There are not currently available tests (at least that do not involve drawing blood and waiting for laboratory testing) to determine whether a person is actively under the influence of drugs other than alcohol. To ensure that a parent with a substance abuse issue is not using during their parenting time, the court will have to rely on random drug tests. The court can order a parent to comply with random urine drug testing. How often the random testing is necessary can vary according to how long the drugs of concern stay in a person’s system after use.
If you believe that your child or children’s other parent has a substance abuse issue, call my office and schedule a consultation. I will help you understand what evidence you will need to be successful in court and what you can expect while bringing the issue to the court’s attention.