Defeating Drug Accusations to Win Child Custody

by | Dec 11, 2013 | Child Custody, Legal Decision-Making, Parenting, Podcast, Uncategorized, Wendy Hernandez Blog

Defeating Drug Accusations to Win Child Custody

Episode 15

Leave us a 5-star rating and review on iTunes and Stitcher!

Disclaimer: The materials and content within this podcast are intended as general information only and are not to be considered a substitute for professional legal advice or a consultation with a lawyer.

1. Family Law Tip of the Week (1:16)

In Arizona, you can negotiate child support arrears with your ex. For example, if you owe $20,000 in arrears, but you only have $10,000 right now, you can offer the $10,000 as a one time lump sum payment in exchange for your ex waiving the rest. The alternative (for your ex) is to get paid the arrears a little at a time (on top of the monthly child support obligation) until the arrearage is paid off. In many cases, this could take years.

Keep in mind that if the State of Arizona has filed a Notice of Appearance in your case, it may have the right to give input as to whether child support can be negotiated (especially if the State is owed money for benefits paid out on behalf of the children).

2. Defeating Drug Accusations to Win Child Custody (2:19)

Housekeeping Matter re: Custody vs. Legal Decision-Making Authority (in Arizona)

As a preliminary housekeeping matter: In Arizona, “child custody” is now referred to as “legal decision-making authority.” That change in terminology went into effect in January 2013. However, because throughout the US, more people refer to “legal decision-making authority” as “child custody,” for purposes of this podcast, the two terms are used interchangeably.

Legal, Prescription Drugs CAN Be An Issue in Some Custody Cases

(3:54) Believe it or not, sometimes the use of prescription drugs in family law cases is an issue. Tracy has handled cases where prescribed medication becomes the subject of dispute. In those cases, judges have taken issue with one of the parties’ use of certain medications.

(4:47) Specifically, those particular drugs have been highly addictive or have impaired the individual’s judgment/faculties. Because of this, judges are worried about parents’ abilities to care for their children while impaired (by prescription meds). The question then becomes this (for the court): is it in the children’s best interests for the parent to be on certain prescription medications?

(5:24) As a lawyer who has a background in criminal law, Wendy observes that if someone is taking a prescription drug that impairs their ability to drive to the slightest degree, it is still considered a crime. TIP: If you are taking a prescription medication, read it carefully to find out whether you should or should not be driving while taking the medication. If you shouldn’t be driving, don’t do it, especially when the kids are with you.

(6:26) In Tracy’s cases, some of the drugs judges have taken issue with are opiates (such as oxycodone and methadone). Depending on your judge, taking certain drugs (even if they are validly prescribed) could affect your custody case.


(7:52) Wendy asks Tracy if she sees judges being more concerned with the types of drugs that are being taken OR the way that the person is taking the drugs (i.e., in accordance with the prescription). Tracy believes that either one of these things could be an issue.

(8:46) TIP: If you are on prescription medication, take your meds in accordance with your doctor’s instructions. If, by chance, you end up in family law court and your ex accuses you of abusing the drugs, it is possible you could be ordered to do testing. Some types of testing will tell the judge whether you are following your doctor’s orders regarding the meds.

Types of Drug Testing That Could Be Ordered in Your Custody Case

(10:15) There are a few different types of tests a person could be ordered to take if drugs are an issue in a case. The two most frequently ordered tests are hair follicle and urine screens. In the majority of her cases, with hair follicle testing, Tracy is seeing judges wanting to go back 90 days (which means that the testing facility will only take a few inches of hair from the root.)

(11:26) Blood testing is also available if hair follicle or urine testing is not providing the information needed. Although blood testing is not routinely ordered in her experience, Tracy would not be shy to ask for blood if a urine or hair follicle test would not give her the info she needs.

Follow Doctor’s Orders and Take Your Meds When You are Supposed to Take Them!

(12:44) ANOTHER TIP: Taking your prescription meds in accordance with your doctor’s orders means not only NOT overusing them, but it also means NOT underusing them. In other words, don’t take your meds just when you feel like it.

(13:58) AND ANOTHER TIP: Get clear from your doctor about whether you can drink alcohol while taking your prescription meds. If you’re not supposed to drink, don’t. It will be a problem if you are ordered to drug test and alcohol is found in your system.

The Use of Illegal Drugs in Custody Cases

(15:15) Next, we talk about the use of illegal drugs.

(15:40) If a person had a drug problem 10 years ago and is now facing a custody battle, the drug issue may or may not still be a problem (for the judge). If Tracy had the client with the former drug problem, she would do everything in her power to show the court that the client had been rehabilitated. One thing to consider (and deal with in court) is evidence of the existence of other addictions that may have replaced the old drug habit (drinking, for example).

(16:43) Depending on the judge, on the drugs, and the extent of the abuse, drug use could be a huge factor regarding a child custody determination. Judges tend to be harder on people who are doing more “serious” drugs than pot. A lot of the time, the drug use may or may not have an effect on custody, but it WILL have an effect on a person’s ability to have parenting time with the kids. (This is where supervised parenting time could come into play.)


What to Do to Show The Judge You Are “All Better Now”

(18:15) For the person with a former drug problem, Tracy would tell him or her to do the following things (to demonstrate rehabilitation):

substance abuse programs
mental health counseling
continuing substance abuse plans

(19:32) Also, if a person had a drug issue years ago, the fact that that person has had children AFTER the drug problem can speak volumes. Show what kind of parent you have been since your child was born. An observation to bring up–did your ex-partner have knowledge of the drug problem when you decided to have children together? If so, the ex-partner’s objection to the former drug use is not very persuasive.

What to Do In Your Custody Case If You Have a Recent Drug Problem

(20:47) For the person who has been struggling with a drug problem more recently, it might be more of an uphill battle to “win custody.” In this case, if you have older kids, they may be asked to provide input about your drug use/behavior. If you find yourself in this position, consider not only rehabilitating yourself, but also consider rehabilitating your relationship with your children.

(21:56) In some cases when a person has been convicted of a drug offense and is placed on probation, that person can use performance on probation to his/her advantage. That person needs to abide by all the terms and conditions of probation. Usually those terms and conditions include substance abuse screening, treatment, random drug testing, etc.

(22:29) So, even if a person has been convicted, if s/he has been following the terms of probation to a “t,” s/he can bring this up to the judge. In fact, the person who is on probation might want to consider bringing in the probation officer to say great things about his/her performance while on probation.

Not All Hope Is Lost!

(22:59) For the person who is totally committed to the children, even with a former drug issue, not all hope is lost. It might take some jumping through hoops and work, and it can be costly. However, when your kids are at stake, you should do what you can!

(23:53) For the person with a former drug problem, show the judge that you aren’t doing drugs AND show the judge that your whole lifestyle has changed. Steady job? New partner or spouse? If so, let the judge know.

(24:23) If a person can be real with the judge and speak truthfully about what lead to the drug issue, that goes a long way. Being accountable and accepting responsibility for the past impresses judges. Not taking responsibility or not addressing what went wrong could be a problem. Don’t play the victim card here and refuse to take ownership.

If You’ve Been Accused of Doing Drugs, But Aren’t… Do This

(25:01) If you are someone who has been accused of doing drugs, but you aren’t doing drugs, take a drug test to put the allegations to rest! If you are in this situation, suggest to the judge that your accuser pay for the drug test if it turns up negative.

(26:38) More commonly, judges are ordering accused people to take both urine and hair follicle tests at the same time. They do this to see what has been in the accused’s system for 90 days. In addition, random urine tests could be ordered moving forward depending on the hair follicle results (i.e., a positive result).

(27:39) TIP: If you’ve been accused of taking drugs (but aren’t), Wendy’s advice is to take both a hair follicle and urine test (without court order) to cover all bases.

(28:22) For the person who is a functioning member of society who smokes the occasional joint BUT has bad timing and a POSITIVE test result, you should offer to take random tests. This will help prove to the court that drug use is not an ongoing problem. Unfortunately, in this situation, it could take months to put the issue to rest because of the positive result.

(29:29) In one of Wendy’s cases, her client (a father) admitted to doing cocaine recreationally. He was highly successful, articulate, remorseful and a good father. In that (rare) case, the judge did not order ongoing testing because he didn’t feel the father had a drug issue. The judge, however, did reprimand the father, telling him not to do drugs again.

(30:22) Tracy has seen testing orders continue for up to a year. Depending on your judge and depending on the results, testing requirements could be reduced in frequency after some time has passed.


(31:22) Some of the downfalls to having to drug test are inconvenience and the cost. Testing can really be a pain if someone has to travel for work.

Drug Problem or No Drug Problem…Your Kids Need You

(32:22) Wendy’s experience is that even for people with continuing drug problems, judges almost bend over backwards to make sure that both parents are involved with the children. Judges try to create solutions to allow this to happen while protecting the safety of the kids. So, even if a person is having trouble kicking a serious drug problem, it doesn’t necessarily mean a parent will never, ever see their kids again. (Again, this is where supervised parenting time comes into play.)

(34:25) Remember, even if you have a drug problem, if you have children: THEY NEED YOU. There is hope!

3. Thoughts From the Life Coach (35:52)

This week’s thought is about anger. Have you ever found yourself in a perpetual state of anger? We all have.

What is important about anger is how you deal with it.

James his gives suggestions for doing this.

Search Categories