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What if a parent uses drugs? Is an alcoholic? Or is always stoned?

Family Lawyer Phoenix

Substance Abuse and Children’s Best Interests

Here’s a fairly common situation: A parent of minor children petitions for divorce, and files for either sole or joint legal decision-making (custody). The other parent replies, alleging that he or she should be awarded sole legal decision-making because the other parent uses drugs, or drinks excessively, making them unfit to have make decisions in the best interests of the children.

Legal Presumption

If one parent has been convicted for using drugs, or being intoxicated, or has abused drugs or alcohol, within 12 months of filing an action in family court, there is a presumption that sole or joint legal decision-making is not in the child’s best interests. However, the presumption is rebuttable.
In order to determine a rebuttable presumption exists, the court must specifically state facts that support its determination the parent abused drugs or alcohol or was convicted of the offense. The court mus also find the legal decision-making or parenting time ordered by the court appropriately protects the children.

Rebutting the Presumption

In order to rebut the presumption, the court considers the following evidence:

  • No conviction of drug/intoxication charges in the last 5 years
  •  Results of random drug/alcohol tests for past 6 months, indicating no drug or alcohol use
  • Results of alcohol or drug screening provided by a facility approved by the department of health services

Advice for Clients

Once the court has issued a finding, and awarded sole decision-making to a parent, the other parent may take steps to regain joint decision-making.  The parent may want to enter a recognized substance abuse program, and earn a certificate of completion.  The next step is to establish a pattern of sober living and responsible conduct.  It is important to keep to the parenting time schedule and make every effort to cooperate with the other parent.
Once a parent has completed treatment and can show evidence of good conduct, that parent may petition the court for modification of legal decision-making.  The petitioning parent must show how their behavior has significantly and joint decision-making is appropriate for the child or children.  The court will look for a basis in order to support modification.  Most significant is the parent living a clean and sober life. Establishing a pattern of drug free and responsible conduct is in the children’s best interests.

Final Thoughts

Arizona, like many states, uses the ‘best interests of the child’ standard to resolve issues of legal decision-making and parenting time.  It will presume parents who use drugs or drink excessively will not be able to act in a child’s best interests.  Like any presumption, it can be refuted by evidence showing an absence of convictions, negative drug tests over a period of time, or the results of a substance abuse screening. The parent can petition for modification when they are able to meet the child’s needs.


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