Drugs, Alcohol, & Parenting

So Your Co-Parent has a Drug or Alcohol Problem. Can They Still Have Parenting Time?

Do you have serious concerns about whether your children are safe in the care of your co-parent because of substance abuse issues? For many parents, ensuring their children are safe while in the other parent’s care is the primary concern. Fortunately, there are several options for parents who are dealing with a co-parent with substance abuse issues.

Colorado law states that it is generally in the best interests of children to have frequent and continuing contact with both parents. However, this legislative declaration does not come at the expense of the well-being and safety of children. See C.R.S. § 14-10-124. Whether one (or both) parents have a substance abuse issue is relevant to the court’s determination of parenting time.

You can take steps to ensure your child’s safety during the court process and for the years after. First, you can appoint an expert to investigate drug or alcohol use and how it impacts parenting. Second, you can strategically draft your parenting plan to include safety provisions that your co-parent must follow to have parenting time. Finally, Colorado law has default emergency options available to you if your co-parent puts the children in imminent danger as a result of their substance abuse.

Read on to learn more:

How can an Expert Help Investigate my Co-Parent’s Substance Abuse?

Some parents will agree to conditions and testing in order to have parenting time. However, many parents do not agree and an expert or the court has to get involved. The Court can appoint an expert in your case to investigate the substance abuse allegations and make recommendations in a comprehensive “substance abuse evaluation”. The expert’s recommendations are often helpful in mediation or when presented to the Court to determine parenting time. These investigations provide key details by a neutral third party in order to present the most factual and organized evidence to the Court. The best expert for your case may depend on the complexity of the facts and the level of substance abuse.

In complex cases, a Parental Responsibilities Evaluator (PRE) can be helpful to investigate serious concerns about drug and alcohol use in conjunction with or independent of a substance abuse evaluation. See C.R.S. § 14-10-127. A PRE is a licensed mental health professional who can conduct psychological testing and make determinations on how your co-parent’s substance abuse issues may affect their parenting. However, PRE investigations can be very expensive, and sometimes without another specialist, the allegations can be difficult to investigate or prove.

A less expensive option is a Child and Family Investigator (CFI). A CFI is a trained professional who can investigate parenting concerns and make recommendations regarding parenting time. See C.R.S. § 14-10-116.5. They cannot conduct psychological testing and are typically more limited in their ability to investigate due to cost constraints. The Court can appoint a CFI along with another professional, like a substance abuse evaluator, to further investigate the substance abuse issues if desired.

A CFI or PRE will investigate your concerns about the other parent’s substance abuse. In doing so, they may review relevant documents and evidence presented and interview people with knowledge of substance abuse. These evaluations can be very helpful in analyzing how substance abuse affects a parent and the children, including the seriousness of the use and whether it is an ongoing concern to bring to the attention of the court.

To read more on the differences between a PRE and CFI, please see our blog: Top 5 Things to Know When Hiring a PRE or CFI.

Can I Force my Co-Parent to Take Drug or Alcohol Tests Before Parenting Time?

Yes, and in fact, most courts and experts recommend some type of testing and monitoring for parents who have substance abuse issues. A testing requirement in your parenting plan helps to ensure your co-parent complies with their sobriety and protects your children. Depending on the type of substance your co-parent uses, and how severe their use is, you may want multiple forms of testing in your parenting plan. We list several common types of testing and the frequency of testing requirements below.

(1) EtG/7 panel Urine Drug Tests: Urinalysis testing is standard for both drug and alcohol use, and most used to determine sobriety from drugs. UAs can test for many drugs, and they can share the results with you within a few days. How often your ex should have to take a UA may depend on the type of drug they are using and how often it leaves the system. When crafting the parenting plan, you can arrange for your ex to take UAs for a certain period (such as six months or one year) and then can reduce the number of tests or discontinue the tests based on sobriety.

(2) BACtrack: BACtrack is a portable breathalyzer that is often the best option for a parent with alcohol issues. They should use the BACtrack before parenting time begins and during parenting time, with results sent immediately to you. How many times (or what time of day) your ex uses the BACtrack during parenting time depends on that parent’s use. A common requirement is to test right before parenting time begins and then to test twice daily during parenting time (once in the morning and once in the evening). This requirement is often reduced or discontinued in the agreement based on sobriety.

(3) Hair Follicle Test: A hair follicle test can be ordered independently or with other testing requirements mentioned previously. For example, they could take a hair follicle test every 80 days to confirm the urine test results. Alternatively, a hair follicle test every 80 days can ensure sobriety after discontinuing urine drug tests to ensure ongoing sobriety.

Can Parenting Time Change if my Co-Parent Stays Sober?

Yes. Many parenting plans have “phases” where your co-parent starts at “Phase 1” with more restricted parenting time and stricter requirements to show sobriety. As the parent progresses (and remains sober) the phases can progress to allow your ex to have more parenting time. These phases often are based on the parent meeting different testing requirements or based on the age of the child. Parenting time is always modifiable as well, so if the parenting plan does not meet the current needs of the children, either parent can file a motion with the court to request a change that better suits the children’s best interests.

What if my Co-Parent Doesn’t Stay Sober During Their Parenting Time?

Your plan should include a provision for what happens if your co-parent does not stay sober during their parenting time. This provision could require parenting time to revert to an earlier phase, require supervised parenting time, or require increased testing and sobriety requirements.

However, your co-parent may not agree to revert to more restrictive parenting, or you may not want them to have parenting time at all. Depending on the situation, you may need to get the court involved by filing an emergency motion to restrict parenting time if you believe the children are in imminent danger. Alternatively,  you may consider filing for a modification of the parenting plan. An attorney can advise you what your options are if this happens in your case.

What if I am the Parent With a Substance Abuse Issue?

Just because you struggle with a substance abuse issue doesn’t mean you shouldn’t get parenting time with your child(ren). The important thing is to get ahead of the issue and take steps to demonstrate that your children are safe in your care. Many of the considerations below are also in CFI/PRE reports, and it is better to take steps now to show you are a safe parent. We list several considerations  to get ahead of the issue below:

  1. Stop using drugs/alcohol: If a parent can show they are taking steps to maintain sobriety, it shows that they can put their children’s needs before their own. Staying sober is often a necessary and helpful step to show this commitment.
  2. Attending AA, NA, or comparable support group meetings can help to show you are taking steps to be supported and work through your sobriety.
  3. See a therapist: Working through your substance abuse issues, including identifying triggers and preventing relapse, is often helpful in parenting cases. Courts often see a parent’s attempts to improve their relationships with themselves and their children through therapy as helpful in overcoming substance abuse.
  4. Take urinalysis tests to show you are not using: If you are sober, taking urinalysis tests can be helpful to prove to the Court that you are sober and not placing your children at risk during the case.

 

Eliza Steinberg is a Shareholder at the firm. Her practice is focused exclusively on family law related matters including divorce, allocation of parental rights, post-decree disputes, and child support matters.

Kellian Pitman is an Associate Attorney at the firm and focuses her practice on all matters Family Law.