Question from a client: “Can I get sole custody if my ex is using drugs? I know my ex is using marijuana and he got a DUI three months ago. The kids were not with him, but I am still worried. How can I make sure he isn’t using drugs or drinking and driving with my children?”
It’s no secret that Arizona prefers joint custody over sole custody, and in general, wants both parents co-parenting. However, when there is substance abuse involved that presumption changes. In fact, the Arizona statutes specifically state where there has been substance abuse by a parent in the twelve months prior to filing a petition, it is presumed to be not in the child’s best interest for that parent to have sole or joint legal decision making. This means that the DUI three months ago definitely needs to go in your petition, or you need to make the Court aware of it’s existence.
The statute and the DUI does not mean that you are automatically entitled to sole custody. (As a side note, legal custody is now legal decision-making in Arizona) The Court must make actual findings that the parent abused drugs or alcohol or that a parent was convicted of such an offense. A DUI conviction, for instance, would be grounds for a parent to ask for sole custody. The Court must also make findings that the custody or parenting time arrangement ordered by the court appropriately protects the child.
Now, just because your ex may have gotten a DUI or you may prove he used illegal drugs doesn’t automatically mean you will get sole custody. The presumption against giving them sole or joint legal-decision making can be rebutted if they have no similar convictions within the last 5 years and they have been participating in drug testing for at least the last six months. The statute does require that results of alcohol or drug screening provided by a facility approved by the department of health services.
The bottom line is that you need to make the Court aware of the DUI and your concerns about the Marijuana. The Court will probably order drug testing and you will have some control over keeping your children safe when they are with your ex. For more questions, give the office a call for a consultation.