Flicker, Kerin, Kruger & Bissada, LLP
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Addiction can complicate child custody issues

Perhaps you knew when you married that your spouse had a substance abuse issue. On the other hand, you may have watched the problem develop and worsen as years passed. Addiction affects the entire family, and you certainly dealt with your share of the burden. You may have lost count of the times you rescued your spouse, made excuses or wondered how you would pay the bills after your spouse lost yet another job.

The time has come for you to start fresh, and that is what your divorce is about. Unfortunately, when you have children, it's not that easy to break free from your spouse. Even though your ex has an addiction, he or she still has the right to spend time with the children, and that may even mean sharing custody with you. If the thought of leaving your children with your addicted spouse is too much to bear, you have work to do before your custody hearing.

Protecting your children

Custody hearings seek the best interests of the child, not necessarily the interests of the parents. Although your spouse's drinking or drug use may be deeply offensive or upsetting to you, if he or she is capable of caring for the children, a California family court may be reluctant to prevent the kids from spending time with their parent. Nevertheless, the court will consider any of the following that may suggest it is not in the best interests of the child for your ex to have custody:

  • Can you produce police reports or other evidence that your spouse's drinking or drug use has resulted in legal action, such as a DUI arrest, a fight or possession charges?
  • Do you have hospital reports or documentation that your spouse's addiction has caused emergency health issues, such as an overdose, car accident or a serious fall?
  • Has your spouse refused to enter a treatment program for substance abuse?
  • Can you show that your spouse drinks or uses drugs in the presence of the children?
  • Will others, such as neighbors, teachers or family members, testify to your ex's unfitness as a parent?

For the good of the bond between your ex and your children, the court may allow visitation but restrict your ex's access to the children. This may include supervised visitation until your ex can demonstrate that he or she has successfully completed rehabilitation or fulfilled some other stipulation of the court.

It is wise for you to comply with the court's order or risk legal action that may jeopardize your own custody rights. However, if at any time you fear for the safety of your children, you can take action through a restraining order or by seeking the advice of a compassionate attorney.

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