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Addiction and Child Custody

Posted by attorney Bryan Salamone

Addiction comes in many forms. In fact, the definition of addiction has been expanding and morphing since the mid-1990s. We have now noticed in our cases that addictions such as gambling; internet; pornography; obsessive collecting; social networking and/or food and plastic surgery addictions have come into play in connection with custody matters. Prior to the 1990s, it seemed that the “addictions" that were the subject of custody and parenting time were limited to alcoholism; drug addiction; and/or gambling. It is through both the increase in divorces and the increase of treatment available for various “tangential" addictions that other addictions affecting a parent’s ability to parent and/or have direct contact with a child have come to be the primary focus of many divorce and/or custody cases.

At the time this article is being written, the news replete with stories of addiction whether it is Charlie Sheehan’s most recent drug fueled binge or, in the past, Britney Spears shaving her head most likely to avoid the hair follicle result evidencing drugs in her system. Addictions, conservatively, affect one in six Americans and they are prevalent, disproportionately, in divorce. The reason that addiction is more prevalent in divorce than in the “cross-section of society" in general is that addictions often cause the break-up of marriages and/or can be the leading precipitating factor of a divorce, to wit: the straw that broke the camel’s back.

In the reported case, the father had hid his addiction and managed to “pass urine tests." Urine tests have a limited range of as little as 72 hours, and alcohol and cocaine addiction together with all prescription narcotics, sometimes is neither not apparent by urine tests and/or may be masked by masking agents. Masking agents are solutions or remedies that can be found anywhere from GNC; vitamin shops and pharmacies. Attorneys must use corroborative testimony of individuals who have seen the person using drugs or knows of the pervasive addiction so that they can obtain an order directing a hair follicle test. The hair follicle test can go back as far as 60 through 90 days and the “masking" agents and shampoos that are used to cleanse hair follicles are often not effective. If a person shaves their hair or otherwise dies, bleaches or uses a masking agent in their hair, body hair is often taken.

Simple drug addiction cases often involve the loss of parenting time and custody.

Addictions such as gambling; compulsive shopping; hoarding and collecting often result in the removal of children when the children become neglected due to the habit, the environment around the home (being unhealthy or unclean) and/or the loss of finances needed to care for the basic needs of the children. It is difficult to handle these cases when a bottom is not reached by the parents and we have represented compulsive gamblers in court and have won custody for them. Indeed, one recent case comes to mind where the gambler listed gambling as his profession and earned more than one-half million dollars a year for many years prior to the divorce. It turned out that the gambling became a flexible schedule with this person and they were able to do it three days a week as well as on-line to earn a substantial living.

With respect to sexual addiction and internet addiction, we have handled dozens of cases whereby children were harmed directly by the activities of one or more parent. In those cases the test remains the best interests of the child however, it is certainly possible for a parent to engage in a double lifestyle and/or lurid activities outside of the presence of the child and away from the child and still retain custody. A case comes to mind wherein we obtained custody for a parent who posed for pictures and had a website based on infantilism. In that case the parent posed in the child’s crib in a lurid and erotic fashion. The Court held that although the parent had an internet cite based on the parent acting as an infant and had used some of the childrens’ belonging to do so, the parent was clearly a loving and caring parent and that the activity had occurred far from the child. Furthermore, in that case the Court gave weight to very credible expert testimony that was presented by the undersigned firm. We presented expert testimony and presented numerous witnesses to demonstrate that by the websites’ security measures no one viewing the website or logging onto the website would be able to determine the name of the person depicted in the pictures and the location of the home. This was very important to the Court as any activities in connection with an erotic or lurid website that could pose a danger to the child would have caused us to lose custody.

It appears that, based on the last few years of cases, and after completing hundreds of cases involving addiction, that courts are tending to act in a manner that they deem safe for the children rather than risking contact between a parent and a child when an addiction has been proven. In the past, the parent with an addiction (whatever the addiction may be), was given the benefit of the doubt; treatment programs; and courts seem to be bending over backwards to give the parent every opportunity to turn themselves around. For whatever reason, courts are less inclined to do so based on our experience and are coming down hard on parents with addiction and giving them hoops to jump through before restoring contact. Courts still consider most addictions a disease requiring treatment. However, they stay steadfast and firm with the best interests of the child. It is in the best interests of the child after the facts and testimony are weighed that the child will not have contact with the parent who has an addiction until the parent has turned themselves around.

The most important factor in many of these cases is hiring an attorney that has the experience and knowledge of the experts needed to present the evidence in a manner that the court will find palatable in restoring visitation and contact. In the alternative, if a client is hiring our firm to protect their child from the other parent who may have an addiction problem, our firm has cases that have been reported statewide on major newscasts and in periodicals and we have a proven track record of protecting children in those circumstances.

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