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January 23, 2024 Feature

Legal Advocacy, Substance Use, and Family Court

Dr. Stephanie Tabashneck

More than 21 million children in the United States live with a parent who has misused substances (Health and Human Services, 2022). Most children who live in a home with a parent with a substance use disorder (SUD) are under the age of 5. Countless more children live in a home with other forms of addiction present. Substance use can have a profound effect on parenting. Parents who have SUD may be less responsive and present for their children or engage in behaviors that have the potential for significant harm, including driving under the influence. On the other hand, children can also suffer and experience harm from unnecessary suspensions of parenting time and this can have a profound effect on attachment and the healthy development of children. Attorneys often struggle with how to navigate this challenging terrain. Does the parent’s substance use rise to the threshold of potentially harmful to the child? What guard rails can be put in place to maintain the child’s relationship with the parent while also preserving safety? Now that a parent is not working but receiving necessary drug treatment what are the implications for child support and alimony?

At the outset, it is critical to understand that SUD is a medical condition and not reflective of character flaws or moral failures. SUD is a brain-based illness that affects the brain, neurocircuitry, and neurotransmitters, including dopamine. Like other medical conditions, such as heart disease, there are genetic components and risk and protective factors, and stress can exacerbate symptoms. Similar to having empathy for those who have heart attacks despite “choice” behaviors such as poor diet or lack of exercise often being a contributor, people with substance use disorder should be treated with compassion.

Attorneys should also be aware that people in the throes of addiction experience deep pain. For most it is excruciating to have SUD. Although the parent can seem like they do not care or are simply not trying, they are likely experiencing crippling embarrassment, anxiety, terror, and sadness. Most people with SUD also have a co-occurring mental health condition such as major depressive disorder or generalized anxiety disorder. Treating people with SUD with respect, dignity, and empathy to the fullest extent possible, while also maintaining appropriate boundaries, has positive implications for their recovery and the well-being of the family unit.

Typical Trajectory of a Substance Use Disorder and Implications for Family Court Cases

Research indicates that the average length of time it takes to obtain one full year of sobriety is seven to eight years with four to five iterations of treatment. Parents in family court are often held to standards unsupported by the science and expected to “get sober” after, for example, one stint in a 30-day rehab. We know that people with SUD often require more time and more treatment to obtain sustained stability in non-use. While many individuals with SUD can “cut back” or decrease their use—successfully managed moderation is the most common suitable outcome—others need to completely abstain from the substance. Courts often impose a “one size fits all” model on parents with SUD. They may as a default require regular meeting attendance at Alcoholics Anonymous, breathalyzing several times a day, and therapy. If court responses are to be consistent with the science, a different, more tailored approach must be taken. Some individuals certainly benefit from Alcoholics Anonymous. However, others have social anxiety or do not believe in a higher power and their likelihood of relapse or recurrence increases by attending daily meetings that they perceive as having no benefit. Parents in therapy with inexperienced clinicians who lack training in SUD can also experience harm. Instead, individuals with SUD should be encouraged to develop their own treatment plan which may include, for example, group peer support (e.g., Smart Recovery, Mindfulness-Based Recovery, Women in Recovery, Alcoholics Anonymous, Narcotics Anonymous), medication-assisted treatment (naltrexone, buprenorphine, methadone), therapy (from a provider specialized in both SUD and mental health), and positive social support. The recovery plan can be incorporated into a court order to maintain accountability and compliance.

Child Custody

Step-up Parenting Plans

When approaching a case with substance use dynamics, it is important to identify whether there is a nexus between the parent’s use and harm to the child. Any parenting plan and safeguards should address this nexus. For example, if a parent has a history of excessive drinking during parenting time, breathalyzing can be implemented immediately before, during, and after parenting time on days the parent has the child. To the extent that the parent is able to not use alcohol during parenting time, this generally remedies the problem and breathalyzing on non-parenting days is unnecessary. If a parent continues to use alcohol during parenting time then breathalyzing the day before parenting time can be added and progressively increased if positive tests occur within short spans of time. For parents who are unable to maintain sobriety or where precipitously cutting their alcohol use could be dangerous to their health, changing the parenting time breathalyzer threshold from .02 to .05 or .1 may make sense. This is only the case if the parent, who now has a higher alcohol tolerance, is still able to behave appropriately during parenting time and proactively respond to their child in a way that facilitates secure attachment and a healthy parent-child relationship.

Step-up plans are a valuable tool for increasing parenting time over time based on non-use during parenting time and compliance with treatment. Step-up plans can be spelled out in a court order with a gradual phasing out of supervision and plan for relapse.

Children do best when there is consistency and predictability. Unless absolutely necessary due to serious danger to the child, suspensions of parenting time should be avoided. If a parent has a positive test but is able to test negative directly before a visit, oftentimes parenting time can occur, for example, in public and/or with a family member present. For example, in the event of a single positive test during non-parenting time, after testing negative on the next day of parenting time the parent may be required to spend time with the child exclusively in a public place and breathalyze an additional time during parenting time.

→ Download a sample step-up plan (PDF)

Recurrence

Relapse is a part of SUD and should be anticipated and planned for. There should always be a relapse plan in place. Relapse occurs on a spectrum and can differ in length and severity. For example, there is a difference between having one glass of wine and then resuming non-use versus drinking several times a day for weeks at a time. There is also a difference between someone using during parenting time and blowing a high blood alcohol content that impacted parenting capacity (e.g., .2) versus a low blood alcohol content that would be less likely to impact parenting (e.g., .02 or .04).

Joint Narrative

Parents should be encouraged to create a joint narrative of what happened in their family and this narrative should be shared by each parent. The narrative can include, for example: “Mom has a substance use disorder, which means she has an allergy to alcohol. Just like Tommy at school cannot have peanuts, Mom cannot have alcohol or she gets sick. Sometimes Mom’s brain tells her to have alcohol which can be bad for Mom. It’s kind of like when you ate way too much candy last Halloween even though it made you feel sick. The good news is that Mom and Dad are keeping an eye on this. There are no secrets at either home. Anything that happens at Mom’s house can be shared with Dad and everything that happens at Dad’s house can be shared with Mom. If you ever have questions about alcohol you can talk to Mom and Dad about it or other people like your therapist or the guidance counselor at school. This is not your fault or something that you caused. We love you.” In explaining a recurrence, a parent should steer clear of punitive language such as “Dad made a bad decision” and instead say, “Remember how Dad has an allergy to alcohol? Dad had alcohol and got sick and now he is getting medical treatment. Dad loves you and you’ll get to talk to him tonight at 6:00 when he calls.” To prevent feelings of abandonment, parents can also speak positively about people in recovery and identify individuals whom their children look up to who also have a history of SUD, such as sports stars and famous musicians.

For children who have been exposed to a parent’s SUD for a briefer period of time—this indeed occurred at much higher rates during the coronavirus pandemic where there was an uptick in SUD—children should be reminded that while Mom or Dad’s medical condition was difficult for the family, this was a limited span of their childhood and that Mom or Dad has been able to get help which everyone needs sometimes.

Establishing a narrative is important because there is often secrecy in families with SUD. This secrecy is bad for children and can prevent children from reaching out for help in the event of a recurrence of the illness.

Working with Your Client

Managing cases where a parent has SUD can be difficult. While an attorney can have the perspective that they are not a mental health provider and should not need to work with their clients to navigate these issues, engaging in evidence-informed legal advocacy and taking the time to understand the perspective of their client and the other parent will result in far better outcomes for the client and the children. The parent without the SUD (“non-SUD”) is often infuriated with the other parent and fails to recognize that SUD is a medical condition that the parent did not choose to have. The non-SUD parent often views any progress made by the other parent with skepticism and distrust. Due to the non-SUD parent’s lack of substantive exposure to the now improved SUD parent, they see the parent through the lens of how they last saw the addicted parent—intoxicated, reckless, and causing harm. For parents in recovery, they can feel that the other parent does not recognize their hard work and progress which can feel discouraging and disheartening. Facilitating healing for the family requires helping your client see the other parent’s perspective and also recognizing the difficult journey that both parents have been through.

Attorneys should endeavor to have basic knowledge of substance use disorder and best practices and avoid worsening the situation by engaging in actions that are inconsistent with recovery and science. For example, advising a parent to stop taking responsibly prescribed medication-assisted treatment (MAT) or condemning a parent for being on medication should never happen. MAT is the standard of care for many substance use disorders. Parents with opioid use disorder, for example, face a very high risk of relapse once they discontinue their medication. In April 2022, the Civil Rights Division of the Justice Department alongside the U.S. Attorneys’ Office issued guidance indicating that the Americans with Disabilities Act applies to people on MAT. In the aftermath of this guidance there have been several lawsuits by the Bureau of Justice for discrimination against people on MAT. Other unhelpful tactics include engaging in name calling and high-conflict rhetoric against the parent with a SUD, such as calling the parent an “addict” or a “terrible parent” due to behavior they engaged in while in the throes of addiction. Even the term “substance abuse” is no longer used in scientific and medical communities and has been replaced by the term “substance use” or “substance misuse” by the American Medical Association, American Psychological Association, and World Health Organization due to the illness’s designation as a medical, brain-based condition.

Lastly, putting services in place can help families grappling with SUD. Relapse and recovery plans work best when monitored by a Parenting Plan Monistor, a mental health or legal professional with expertise in SUD. The provider can monitor the parent’s progress, drug testing, and communicate with other providers. They can also help to manage recurrences and work with both parents to navigate recurrences in a way that minimizes harm to the child. By taking into consideration the perspective of their client, the other parent, and the science of addiction, attorneys can achieve better outcomes for their clients and their children.

Useful Sources

Stephanie Tabashneck (Ed.), Substance Use and Parenting: Best Practices for Family Court Practitioners (2021), Boston, Massachusetts Chapter of the Association of Family and Conciliation Courts.

Center for Children and Family Futures and National Association of Drug Court Professionals, Family Treatment Court Best Practices Standards (2019) (prepared for the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs)

Robin Ghertner, U.S. National and State Estimates of Children Living with Parents Using Substances, 2015–2019 (2022), U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation.

Dushka Crane, et al., Improving Family Stability and Substance Use Recovery for Families in the Child Welfare System: Impact of Ohio’s Statewide System Improvement Program, 55 Health Services Research, 25–26 (2020).

Stephanie Tabashneck, Family Drug Courts: Combatting the Opioid Epidemic, 52 Family Law Quarterly, 183–202 (2018).

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Dr. Stephanie Tabashneck

Senior Fellow in Law and Applied Neuroscience

Stephanie Tabashneck, PsyD, JD, is a forensic psychologist and attorney in Boston. She is a Senior Fellow in Law and Applied Neuroscience, a collaboration between the Center for Law, Brain & Behavior at Massachusetts General Hospital and the Petrie-Flom Center at Harvard Law School.