Most of us will encounter cases in which the client may engage in behaviors others might view as excessive, whether in connection with alcohol, drugs, gambling, pornography, or a variety of other substances or activities. We will also have clients who make that accusation against the other party. Sadly, that concern may also arise with respect to colleagues we encounter in our practices. With many such issues, the answer to the question of whether there is cause for concern or a need for action may be matter of degree. As well, this is an area in which personal distaste or individual moral judgments may color the views of either of the parties or those of counsel and the court.
We all see the clients who will exaggerate accusations against the other party of substance abuse or other disordered behaviors in an effort to strengthen their own position. A single past event involving alcohol, recreational drugs, prostitutes, or other behaviors does not always signal a current problem. Nevertheless, the teetotaler who deems the alcohol consumption by their spouse to be excessive is not always wrong. As well, we may see things relating to our own clients that raise questions about their stability. The challenge for practitioners is to figure out not only when to act on accusations or concerns, but in what fashion.
As a family law attorney, how can you tell who has, or doesn’t have, a substance use disorder (SUD)? Mental health and addiction counselor Dr. Wendy Coughlin has written “If It Looks Like a Duck . . . How to Identify Substance Use Disorders in Your Family Law Client.” She explains the 11 symptoms of SUDs from the American Psychiatric Association’s DSM-5 and when you should recommend someone for a toxicology screening. For co-parents with a history of an SUD, she explains the importance of monitoring recovery and any relapse to protect children while they are in the custody of the recovering parent. Coughlin encourages attorneys to trust their instinct and treat any accusations of substance abuse as potentially credible.
In “Navigating Substance Abuse in Family Law: A Compassionate Approach to Ensuring Child Safety,” Chris Beck of Soberlink cites a startling statistic from the Alcohol Abuse and Mental Health Services Administration that around 1 in 10 children reside with a parent who has substance abuse issues with alcohol, drugs, or both. He suggests that family law attorneys have not only a legal, but also a moral, imperative to protect vulnerable children by staying abreast of and using available tools such as alcohol and drug monitoring to ensure child safety and assist in informed custody decisions. He urges practitioners to take a compassionate approach to parents grappling with substance abuse and to use these tools to aid in their rehabilitation.
In “Substance and Behavioral Addiction in Family Law Cases,” Scott Friedman and Dr. John L. Tilley note that addiction is very often the underlying reason for a marriage’s termination and/or conflict with children in a post-decree matter. They urge legal counsel who suspects their client may have an addiction to consult with an addiction mental health professional, such as a forensic psychologist, as soon as possible and then develop a strategy on how to deal with the addiction in the family law matter. They also provide tips when representing the non-addicted spouse and for safeguarding the children of the addicted spouse.
Elliot J. Wiener discusses the nuances of representing a client with a sexual addiction and how this type of addiction can be just as devastating to the addicted person and their relationships as any other in his article, “Sexual Addiction and Custody Disputes.” He adds that the focus in custody matters involving a sexually addicted parent should be on the person’s ability, or inability, to parent effectively and to expect and prepare for possible personal judgments regarding the behavior from judges, other lawyers, and the other party. He strongly cautions lawyers who may be representing a client accused of possessing child pornography to protect themselves from criminal liability through inadvertent possession of electronic materials and to hire a criminal attorney familiar with such sensitive cases.
Forensic psychologist and attorney Dr. Stephanie Tabashneck addresses the difficulty family law attorneys have in balancing the safety and emotional well-being of children with a parent living with SUD in her article, “Legal Advocacy, Substance Use, and Family Court.” She acknowledges that SUD can cause a parent to be less responsive to the needs and safety of their children but that unnecessary suspensions of parenting time can have profound effects on attachment and the healthy development of children. She leans on the science of addiction to create realistic expectations and provides a sample “step-up” parenting plan that takes the trajectory of addiction and the child’s well-being into account.
In “Guardians ad Litem for Children and/or Parents in Family Law Cases involving Substance Use Disorder,” the Hon. Karen S. Adam (Ret.) notes that lawyers and others who serve as children’s representatives or adult guardians/GALs can interrupt the cycle of harm that SUD causes families only if they are well-versed in the issues and can present them effectively to the decision-makers. She acknowledges the major changes to state statutes and rules of procedure that govern the appointment of a GAL for an adult in a family law case and provides a list of resources family lawyers who are not experts in this area can use to learn more.
“Recognizing Addiction Bias in the Legal Field: What Impact Does It Have?” by Andrea Muchin sheds light on how the treatment of a person with an SUD by their lawyer, opposing counsel, and the judge can be shaped by those individuals’ past experiences and have real effects on the outcomes of a case. She encourages all parties in a family law case involving SUD to check their stereotypes and implicit biases that only contribute to the stigma of addiction and cloud the best outcomes for families.
Michael A. Mosberg and Ella R. Cohen examine “The Ethics of Addiction in the Legal Profession,” through the lens of the ABA Model Rules and various state bar association professional conduct opinions. They detail the ethical obligations an attorney has when representing an addicted client or suspecting substance misuse of opposing counsel—or when struggling with their own substance use—in terms of both legal and health outcomes. They explain the delicate balance between running afoul of privacy and ethics rules and displaying human compassion for one’s client, fellow attorney, and oneself and remind us of the myriad confidential and often free lawyer assistance programs available to attorneys and law students who are struggling. A list can be found on the ABA’s Commission on Lawyer Assistance Programs webpage.