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Specialty tag(s): Mental Health and Addiction in Divorce, Child Custody, Divorce

Keeping Your Kids Safe: Possession and Access When Drugs and Alcohol are Involved

Andrew Tisdale | September 18, 2024

If your spouse or co-parent is struggling with drugs or alcohol, there are ways to ensure your children’s safety and still allow them to maintain a healthy relationship with both of their parents. A skilled attorney can help you craft a game plan to ensure that your children’s safety remains paramount. In Texas, a standard possession schedule is presumed to be in the best interest of the child, but that presumption can be overcome by showing that the standard schedule is not in the child’s best interest by a preponderance of the evidence. The “preponderance of the evidence” standard means that one side’s argument is more likely true than not, or in other words, the evidence shows that there is a greater than 50% chance that the claim is correct. It’s like tipping the scales just slightly in one direction based on the evidence presented.

The first step to gathering evidence that a standard possession schedule is not in the best interest of your child is to gather evidence of the other party’s drug or alcohol abuse. This includes things like videos, audio recordings, text messages, drug or alcohol related convictions, and drug or alcohol testing. The best source of evidence is to ask the Court to order the other party to take a drug or alcohol test. The next step would be to show the Court that the drug or alcohol abuse negatively affects the other parent’s ability to care for the child or children.

You and your attorney should have a discussion to determine the possession schedule, if any, the other parent can have while still ensuring your child’s safety. A step-up schedule, which is a level-based system of possession and access, can be very helpful to ensure that the other parent’s access and possession is conditioned on certain behavior and other requirements. Many times, these schedules will require certain lengths of time with passed drug or alcohol tests, or a particular amount of passed alcohol tests. If your spouse is struggling with a drug problem, regular random drug testing can be a helpful requirement. Possession and access can be conditioned on the other parent passing random drug tests. If the other parent is struggling with alcohol abuse, there are several helpful tools that Courts will use to ensure that the parent is sober when they have access to or are in possession of the children. Soberlink is a device that is very similar to a breathalyzer, and the parent using it will be required to use it before, during, and after their period of possession or access to ensure their sobriety and the children’s safety.

The most important thing to do if you believe that your co-parent’s drug or alcohol abuse is a threat to the safety of your children, is to talk to an experienced family law attorney who can help you create a plan that best fits your family’s needs.