Drug Use and Custody
- I think my ex spouse is starting to use drugs, is there anything I can do to protect our children?
Definitely. If you believe your ex is using drugs or abusing any sort of substance it could be putting your children in danger. However, you need some sort of proof or evidence to support your claim that he/she is using. If you do not, the judge will likely throw out your concerns.
- So what would I need to do?
This depends. If you and your ex were never married, and there is no current court order in place, you will need to file a Petition to Establish Legal Decision Making, Parenting Time, and Child Support. If you were divorced or have a court order from at least a year ago, then you will need to file a Petition to Modify Legal Decision Making, Parenting Time, and Child Support. Along with either of those documents, you will file a Motion for Temporary Orders. This will get some sort of temporary plan put in place quickly due to the alleged drug or substance abuse.
- What if our current order is less than a year old?
This makes things a little trickier. The law requires a parent to wait a year before filing for a modification. However, there is an exception. If there is an emergency situation, you can file for an emergency order at any time. Keep in mind that these are very difficult to obtain. You will need very good evidence that your child will be in immediate harm or danger if left unsupervised with the other parent. An example of good evidence would be a photo of the other parent using drugs or if the other parent has been arrested for a drug related incident recently.
- What happens once I file for temporary orders, what should I be requesting?
The most important thing you will want to request from the judge is a court order for random alcohol and drug testing through TASC. If the judge agrees that this is necessary, then the parent will have to complete the testing for a set period of time. Depending on the exact issue and if you have evidence of the drug use, you may want to request supervised parenting time as well. Chances are that you will not be awarded supervised parenting time without evidence of the drug use.
- What if my ex is not taking the required drug tests?
In this situation, you need to let the court know right a way. Most often the court will treat an incomplete test as a positive test. You will want to file a Notice of Positive Test/Notice of Non-Compliance with the court. In your notice you will want to request that the parent’s parenting time be suspended due to the failure to take the court ordered tests.
- If my ex continues to test positive, what can I do to help the situation?
One option may be to request that the parent be sent to drug court. Drug court is associated with the family court. Your case will be transferred over to drug court who will have the authority to make decisions about parenting time and legal decision making. The other parent will be required to make many court appearances, as well as take routine drug testing and counseling sessions. It can be very helpful if you fear that your ex will not be held accountable without court intervention.
