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Guide to Custody Modification for Parents in Recovery from Substance Use Disorder

Last Updated On: 2/28/2020 5:57:26 PM

This article is about child custody for people in recovery, so if your child has a Child Protective Services (CPS) case for abuse and neglect or someone else has guardianship of your child, this article may not help you. If you have general questions about child abuse and neglect, visit our child abuse and neglect law article. If you are a relative that wants to help a child with a CPS abuse and neglect case, take a look at our abuse and neglect article for relatives. If someone who is not a birth parent has custody of the child and you have questions about guardianship, please visit our article on infant guardianship.

How do I get time with my child?

As you continue your recovery, you may want to spend more time with your child. Your first step may be filing for a custody modification. If you are already spending more time with your child than before your recovery, the judge may change custody to better fit how you and the other parent split time and care for the child.

People in recovery can face bias in the courts. Substance use disorder is a treatable, chronic brain disease, but many people disagree on the best treatment. If your case is in front of a judge who says things like “You can’t have custody until you go off of methadone or suboxone,” you should contact Legal Aid or another lawyer to talk about your case.

While laws do protect people in recovery from bias, the family court has to balance being fair to an adult in recovery with a child’s best interest. Getting more time with your child may help your recovery, but the court will always focus on your child’s needs. Sometimes the judge will decide that it is important for a child to stay mainly with someone they lived with for a long time to keep the child stable. You can always ask to spend more time with your child even if the judge decides someone else should have primary custody.

What will I have to prove?

After finishing inpatient treatment, there are many things you can do to show the judge that you are ready to have more time with your child or to be the custodial parent, such as:

  1. Follow the rules of your recovery program,
  2. Give the judge your negative drug screens, and take any new screens the Judge asks for,
  3. Show you have a stable home,
  4. Keep stable employment,
  5. Stay out of legal trouble and stay away from people using illegal substances,
  6. Follow the court’s visitation or custody orders.
Remember judges look at these things to decide whether to change a custody or visitation order. These things look better as time goes on. For example, a judge would rather see a year in a recovery program than a month.

How will I have to prove it?

At a custody modification hearing, you must show the judge why they should change the amount of time you can spend with your child. You must show that your life has changed enough that you can care for the child’s needs, and you must show that changing the current plan is in the child’s best interest.

You can tell the judge about how your life has changed, bring other witnesses to court, and bring paper records. Records can include a recovery certificate, negative drug screens, pay stubs showing employment, a lease or a mortgage documents, and volunteer community service logs.

Note: If a doctor prescribes medicine to help your recovery (MAT), tell the Judge and bring in all your prescriptions.

Note: Even if you can show changes in your life, the judge may not give you a custody modification. The judge always looks at the best interest of the child. Sometimes if the child has lived with someone else for a long time and is stable, the judge will not make big changes. You can still ask to spend more time with your child, even if the judge decides that primary custody should not change. 

What if I want to enter a recovery program?

Beginning treatment is a big step to show the court your life has changed. Reach out to one of the following helplines and find the right treatment center for you:

National Helpline- https://www.samhsa.gov/find-help/national-helpline 1-800-662-4357

Help4WV- https://www.help4wv.com/home#services 1-844-HELP4WV

I’m interested in medication assisted treatment (MAT). Are there any MAT doctors near me?

Visit SAMHSA’s doctor locator and search by your zip code or city.

What about other treatments, such as detox?

Visit SAMHSA’s general treatment locator and select the “Substance Use” and filter your results based on treatment type. You can also filter by special programs, such as programs for pregnant women and new mothers, military families, or victims of sexual abuse.

Do recovery programs accept Medicaid?

SAMHSA’s treatment locator has many other treatment filters, including payment and insurance types accepted. In addition, here is a list of West Virginia alcohol and substance rehabilitation centers that accept Medicaid.

How do I get a drug screening?

In addition to treatment centers, many other locations offer drug screenings. Some include your local Med Express and the probation office. Do not use an over the counter drug test, because a third party must give you the drug test for that test to be good evidence in court. For more information, visit the West Virginia courts drug screening brochure.

What happens after the hearing?

The family court judge will consider the evidence presented at the hearing and decide whether to change your parenting time. The court will prepare and send an order to the people on both sides of the case.

What factors will the court consider?

  1. The stability of the child
  2. If you agree with the other parent about the child’s custody,
  3. The existing parent-child attachments,
  4. Making sure there is meaningful contact between the child and each parent,
  5. The child’s relationship to caretakers who love the child, know how to provide for the child’s needs, and who place a high priority on doing so,
  6. Security from exposure to physical or emotional harm,
  7. Fast, predictable decision-making and avoiding uncertainty about the child’s care.  

What if there are allegations of child abuse or neglect?

Note: If a party says the child was abused or neglected due to substance abuse during a custody hearing, the judge may take the following steps to protect the child:

  1. The judge may ask CPS to investigate whether there is abuse or neglect. CPS will report what they learn to the court;
  2. The court may appoint a guardian for the child to act in the best interest of the child;
  3. The court may appoint a lawyer called a guardian ad litem (GAL) to represent the child in court; and
  4. The court may restrict parental rights.

If you have questions about the role of a guardian ad litem, read our GAL article.

Disclaimer: Judges take allegations about child abuse or neglect due to substance abuse seriously. It can be a long hard process to get back custody of a child once CPS is in the case. Also, a CPS case happens in circuit court, which is separate from custody change hearings that happen in family court.

As with all custody modifications, the court is most likely to make changes when:

  • The parents agree to the changes;
  • There has been a change in your situation, and it is in the child’s best interest to spend more time with you; and
  • The judge is sure the child will not be harmed.

For more information on this topic, go to Legal Aid of West Virginia’s Custody Modification: Asking to Change the Court Ordered Parenting Plan.

For additional West Virginia Family Court forms go to the West Virginia Judiciary.

This is general legal information. For guidance about your situation, talk to a lawyer.