By Jessica A. Bryant
One significant area of concern in some Colorado custody cases is that of addiction. More often than you might realize, allegations arise regarding drug and/or alcohol abuse by one or both parents. When these issues arises, there are a variety of considerations, including, how to prove them, how to defend against them, and other considerations when fashioning a parenting plan.
- Proof: When concerns arise that the other parent in your Colorado custody case may abuse alcohol and/or drugs, it is not enough to simply appear at court and tell the judge or magistrate you have concerns regarding substance abuse. You must be able to prove to the judicial officer that there is a problem. If the other parent has a criminal record related to drug or alcohol use (possession, driving under the influence, etc.), there are ways to obtain proof of their criminal history to provide to the court. This can include getting records directly from the criminal case or logging onto various websites which list not only criminal charges, but also the disposition of those charges in the criminal court.
If there is no documented history of drug or alcohol abuse, you may need to request the appointment of an expert. Common types of appointed experts in custody cases are Child and Family Investigators (CFI’s) and Parental Responsibilities Evaluators (PRE’s). While CFI’s cannot complete substance abuse evaluations, they can request that either or both parents undergo drug and/or alcohol testing. For example, a hair follicle test can detect certain drugs back, approximately 90 days. You could also request, or the CFI or PRE could recommend, that one or both parents undergo an independent substance abuse evaluation. This is an evaluation completed by a trained professional, generally a Certified Addictions Counselor (CACIII), to determine whether key features of abuse are present in an individual. While a CFI/PRE conducts a comprehensive evaluation related to overall custody recommendations, a substance abuse evaluator evaluates only on the issue of substance abuse.
Finally, whether via agreement or forced court order, drug/alcohol testing can be put into place. The test results can be provided to the court as documentation of drug/alcohol abuse. A Denver custody attorney can discuss the different types of tests, in detail, and what type of test and testing schedule may be best suited to your case, as well as the best way to provide the results to the court. Interestingly, when one party is asked by the other to do testing, it’s rare for them to say to, “no.” To say “no” raises the specter of suspicion that there is something to hide. Dirty results will often lead to parameters, continued testing, and potentially restrictions on parenting time for the safety of the child.
2. Defense: Unfortunately, in some cases, false accusations of drug/alcohol abuse are made. If you are the parent accused of having an addiction, you may volunteer to undergo a substance abuse evaluation and/or random testing to obtain independent evidence of sobriety. If there is truly no issue, you have nothing to lose. However, if you have used drugs or alcohol, it’s important for you to know how far back the tests go in terms of detecting usage so as to try to ensure negative results. As testing and evaluations will generally come with a monetary cost, it is possible to request that the other side reimburse you for those costs if the results of such are negative. As indicated above, the right move on the chess board when you are confronted with a substance abuse allegation is to volunteer to do testing. There’s no better way to shut an allegation down than to disprove it. When talking about testing, keep in mind that alcohol testing is only going to occur when there is either a past record of alcoholism or the issue is raised. In general, parents can drink and alcohol alone will normally not be an issue or something prohibited. Drugs are a different story. With Colorado now being a marijuana state, its usage is becoming similar to alcohol in that usage alone is not going to be a prohibition on parenting time, but problems arising from such may be.
3. Parenting Plan Considerations: If you are entering into a parenting plan and want to ensure drugs and alcohol are not used while caring for the children, you can include language to such effect in any parenting plan. Without testing requirements or supervision requirements, such language is hollow and difficult to enforce. Without oversight and/or testing, there is no way to know whether the provision is being followed. If alcohol is an issue, provisions for testing can be included to require ETG UA (ethanol) testing at the end of a parent’s time, which can go back approximately 80 hours, roughly every 3 to 4 days for longer blocks of visitation. Urinalysis testing (UA’s) for drugs can also be set up to occur randomly, once or twice per week. In any case, the court will generally require testing for a specific length of time, such as 6 months or a year. As UA’s can potentially be beaten, your attorney may also suggest requiring a hair follicle test every 90 days during, and at the end of the test period, to provide an extra assurance. Developing a testing regimen to cover the bases is important.
When entering into your parenting plan, you also need to consider requiring the signing of releases to obtain results directly. Additionally, you will want language defining what constitutes a “dirty” test result, which will normally include missed, late, or dilute results and what the consequence will be as relates to visitation. Over several years of practicing Colorado family law, I’ve had clients come to me with previously written orders that lack the detail and creativity necessary to subjectively deal with the substance abuse issue in their cases.
In my next posting, I will provide more information regarding how courts will generally view a substance abuse issue, when proven, including norms for dealing with the issue, restrictions on parenting time, and the importance of following the orders, whatever they may be, related to the problem. The hope is always that if there is a substance abuse issue, it is short-lived and correctible. However, as any experienced Colorado custody attorney knows, this is not always the case. The bottom line is that Colorado family law courts want to know kids are safe and will generally put procedures in place to ensure such, including as relates to substance abuse issues.