The Impact of Addiction in Family Law Cases

By David J. Steerman, Esq., Klehr Harrison Harvey Branzburg LLP

Reuters Legal News, MARCH 11, 2024

Family law cases are rife with many emotional and legal complexities. One factor that is often the root of family law issues, and something that can significantly sway their outcome, is addiction. Whether an individual is actively struggling with addiction or is in remission, their addictive behavior and related repercussions can have far-reaching implications on various aspects of family court proceedings.

When it comes to substance abuse, the numbers are much higher than most would think. According to the National Center for Drug Abuse Statistics (https://tinyurl.com/4zyuf7ps), 20.4% of Americans who consume alcohol have an

alcohol use disorder, and 25.4% of those who use illegal drugs have a drug disorder. This means there is a large portion of the population who is either

struggling with addiction themself or living with a family member in the throes of addiction.

Addiction can take on many forms, such as substance abuse, alcohol abuse, sexually compulsive behaviors, or gambling, and the problems that can result often play a role in the deterioration of marriages and parent/child relationships. Addictive behavior can jeopardize a family’s well-being or safety, and it often results in financial difficulties when money is used to support an addiction or it results in addiction-related loss of employment. There is also the risk that addiction can lead a partner to overstep boundaries and become either physically and/or emotionally abusive and sometimes break laws.

No matter how addiction is impacting a marriage, when considering divorce, it is important to understand how it can impact the underlying legal proceedings. Many challenges and consequences exist for individuals navigating such legal battles, especially when children are involved.

When it comes to custody, the courts focus on children’s best interests

The influence of substance addiction on children cannot be understated. According to a 2022 Brief from the U.S. Department of Health and Human Services’ Office of Human Services Policy (https://bit.ly/3IqNa9z) “in an average year from 2015–2019, more than 21 million children in the United States lived with a parent who misused substances, and more than 2 million lived with a parent who had a substance use disorder.” Again, this is a large portion of minors living in America. Since individuals are often reluctant to admit their own addictive behaviors as well as those of their family members, it is likely the statistics referenced above are underreported.

A child living with a parent struggling with drug addiction is far more likely to struggle (https://tinyurl.com/3ump9nsp) with future challenges related to emotions, behavior, and substance use. Additionally, the repercussions of drug addiction on families encompass short- and-long term emotional, financial, and

relational consequences (https://tinyurl.com/57ryadh3), resulting in concerns about child development, relational stress, alienation, and economic effects such as food insecurity, housing issues, and the adequate fulfillment of basic needs.

No matter how addiction is impacting a marriage, when considering divorce, it is important to understand how it can impact the underlying legal proceedings.

The courts strive to prioritize the well-being of the children. In crafting legal and physical custody plans for children affected by divorce, the children’s best interests are always the primary concern. Typically, the courts are looking for as little disruption to the child’s life as possible and look for ways to keep the children in a positive and safe relationship with both parents. This could mean the court grants equal shared custody or substantial physical custody rights for a noncustodial parent. The court is also responsible for determining which parent or parents have legal decision-making authority on issues like selection of schools and medical and/or mental health providers.

However, when there is a history of addiction, the courts must certainly take this into account to provide for the safety and well-being of the children. The courts must, of course, factor in addiction and resulting behaviors when determining parenting arrangements. During a custody dispute, if a parent’s addiction is deemed detrimental to the child’s well-being, it can significantly impact custody decisions.

Courts may order drug tests, Courts may order drug tests, assess the frequency of relapses, require daily and/or intermittent random drug/alcohol monitoring, and scrutinize the impact of the addiction on the parent’s daily life. Substance abuse can lead to erratic behavior, neglect, or even abuse, raising concerns about the parent’s capacity to meet the child’s needs.

Attorneys may work with experts, such as addiction counselors or psychologists, to build a comprehensive case demonstrating the afflicted parent’s commitment to overcoming his or her addiction and maintaining a healthy relationship with the child.

In remission: the lingering shadow

Even when an individual has achieved remission from addiction, the impact of their past struggles can still impact family law proceedings. The recovering individual is responsible for proving their sustained commitment to sobriety and providing a stable and nurturing environment for the family.

The impact of addiction on family law cases is multifaceted and requires a nuanced approach from attorneys regardless of whether you represent a party with an addiction or their non-addicted partner/spouse.

Attorneys may advocate for their clients by presenting evidence of the individual’s active participation in support groups, therapy, and rehabilitation programs. Letters of recommendation from counselors, employers, and community members can also play a pivotal role in reinforcing the narrative of recovery and

rehabilitation, establishing a clear link between the individual’s past struggles and their current ability to fulfill familial responsibilities.

When it comes to alcohol addiction, many attorneys are faced with the difficult task of ongoing monitoring whether a parent is and remains sober. Similarly, courts are faced with having some form of ongoing protection in place for children of parents with alcohol abuse issues. Rather than limit the parent with the alcohol abuse history to supervised visits or custodial periods that can be costly and awkward, courts can turn to specific orders that require the ongoing and regular use of a monitoring device by the afflicted parent. These devices allow the results to be shared with the non-afflicted parent in real time.

Orders for use of daily monitoring devices monitoring devices require a parent to use same just prior to and during any custodial periods for an extended period of up to a year or more. Some orders may even require use of the device during non-custodial periods. These devices have proven track records of accurately monitoring blood alcohol content ( BAC ) levels that result in compliant or non-compliant test results being immediately registered and recorded and sent to the other parent or party. The results are easily printed and can be used in court as a form of documentary evidence to demonstrate a parent’s sobriety or lack thereof. A more popular and widely used device is SoberLink (https://tinyurl.com/ewwvsku8).

The conventional view of recovery is that it should be without relapse. However, research shows that between 40 and 60 percent of individuals (https://tinyurl.com/2t7y3e9f) entering recovery programs have relapses during their treatment plans. The court system may use these relapses as data points for re-evaluation of custody plans and various restrictions and limitations set forth in same.

Impact on financial matters

Addiction can also significantly impact family finances. Substance abuse may lead to job loss, financial instability, dissipation of marital assets and income, and increased legal costs. In divorce proceedings, the division of assets and determination of spousal support may be influenced by the economic fallout resulting from addiction.

Attorneys may need to work closely with financial experts such as vocational evaluators and forensic accountants to assess the economic impact of addiction on the family’s assets and income. Establishing a clear picture of the financial consequences of addiction can be instrumental in litigating favorable outcomes and/or negotiating fair settlements for the non-addicted spouse. Additionally, courts may consider the financial strain caused by addiction when making decisions related to child support and alimony, recognizing the need for a balanced and equitable resolution.

Protective orders and safety measures

In cases where addiction poses a direct threat to the safety of family members, attorneys may seek protective orders to ensure the wellbeing of their clients. Substance abuse can contribute to domestic violence, endangering spouses and children. Attorneys must gather evidence to demonstrate the immediate danger posed by the addicted party and advocate for measures that prioritize the safety of the family and demonstrate a pattern of behavior that places the non-offending party in imminent fear of bodily harm and/or actual physical violence that results in bodily harm to the non-offending party. On occasion, recent and recorded threats of violence and harm to the non-offending party may also form the basis for a protective order.

Collaboration with law enforcement, therapists, and social workers may be necessary to build a compelling case for a protective order. Attorneys may also work to establish a clear plan for an offender’s rehabilitation and ongoing monitoring to address the court’s concerns and reassure them of the family’s safety.

The impact of addiction on family law cases is multifaceted and requires a nuanced approach from attorneys regardless of whether you represent a party with an addiction or their non-addicted partner/spouse. Ultimately, the intersection of addiction and family law underscores the importance of a strategy that balances legal advocacy with empathy and understanding of the challenges faced by individuals on their journey to recovery.

About the author

David J. Steerman is chair of the family law group at Klehr Harrison Harvey Branzburg LLP. His legal career is dedicated to helping individuals and families resolve all forms of legal issues including, but not limited to, divorce (negotiated and litigated), custody, all forms of support, prenuptial and post nuptial agreements in Pennsylvania and New Jersey. He is based in Philadelphia and can be reached at [email protected]

March 11, 2024 ?2024 Thomson Reuters

Reprinted with permission.