Gone are the days when mothers had an upper hand in custody litigation simply by virtue of the archaic belief that young children need their mothers more than their fathers. Joint physical custody is the norm. In fact, I often tell clients with children in the preliminary stages of divorce that their case is a joint physical custody case unless there is evidence of one or more of the following:
- Some form of physical abuse
- Mental health issues
- Substance abuse
Sometimes building the case for primary custody is easy because there is clear evidence supporting the claim of parental unfitness. In a case of physical abuse, there may be police reports, photographs, and a file from child protective services corroborating the claim. In cases where a parent’s mental health is at issue, there may be doctor reports, prescriptions, and a mental health evaluation showing some level of psychosis. In cases of substance abuse, if illegal drug use is being alleged, a positive drug test is pretty damaging evidence that there is a problem. If abuse of prescription drugs is the claim, often there will be evidence of multiple doctors prescribing the same drug to one person and pharmacy records showing repeated refills. Alcohol abuse is typically coupled with multiple DUIs, a substance abuse evaluation indicating alcoholism and a lack of performance at work.
Unfortunately, lately, I have seen more and more contested custody cases where there are allegations that one parent is an alcoholic, without any physical evidence to support it. In these cases, one parent (usually Mom) is desperate to keep primary custody of the children.
Consider the following hypothetical:
Mom claims that Dad abuses alcohol on a regular basis, but Dad is gainfully employed and has no DUIs. Mom is going to have an uphill battle to prove her case under these facts. Mom has the children and refuses to allow visitation unless Dad submits to a substance abuse evaluation. Should Dad submit to the evaluation and waive his privacy rights in order to see the children or should he wait to get in front of the Judge, which may take as long as 12 weeks? Dad ultimately agrees to the evaluation, believing that the substance abuse evaluation will come back with no issue. The substance abuse evaluator reports, however, that Dad may have an issue with alcohol because he drinks when stressed and he uses alcohol at times as a coping mechanism. The question is whether this makes him an alcoholic who should not have custody of his children? Dad will not now admit that he has a problem, because he really believes he has control over whether he drinks. Mom says his refusal to admit the problem is the first sign of alcoholism. Mom then sets up further hurdles and makes visitation contingent upon him submitting to continuous alcohol monitoring in the form of a SCRAM ankle bracelet.
Should Dad submit to these kinds of restrictions and jump through these hoops in order to see his children before he can get into Court, or does it help prove Mom’s case? You can see how the case can snowball out of control.
My advice for Dad in this situation is to first obtain counseling to fully explore whether he has a substance abuse problem. If, after counseling, he truly believes that he does not have a problem, then, pending the court hearing, Dad should consider whether the amount of visitation being offered is worth hoops he has to jump through to get it. In my experience, a parent desperate to see their children will do pretty much anything to make it happen. If, however, Mom is not offering substantial time with the children and still insisting upon these types of restrictions, my advice for Dad is to stand his ground. If Dad has made substantial concessions to Mom in order to ease her fears regarding visitation, and she is still resisting meaningful access to the children, then the case may be more about Mom’s obstructionist behavior then it is about Dad’s potential alcoholism.
Jessica H. Anderson
Divorce Attorney Reno, NV