Today, it may be socially acceptable to drink (sometimes to excess), and to use legal drugs like marijuana, however, in the event of divorce or a custody battle, you may find that your behavior regarding substance use is an issue. While not all substance use is problematic, there can be a fine line between normal use and use and use that actually places your children at a potential risk of harm. You may find that, when you are thrust into the midst of a custody battle, you and your partner’s historical and current use of alcohol and/or drugs is a central issue in your case.
Just because your co-parent is a frequent user of drugs or alcohol, it may not merit a restriction of their time. Colorado case law has scrutinized situations in which a parent’s parenting time was improperly restricted in the absence of evidence or findings showing endangerment or that the basis of the restriction was not as a result of behavior that occurred outside of parenting time. In re Marriage of Parr and Lyman, 240 P.3d 509, 512 (Colo. App. 2010). Thus, it is worth being proactive, rather than reactive, if you have concerns about substance abuse in your family law case. You should work closely with your family law attorney to determine how best to address these concerns in your case.
There are a number of tools and/or safeguards that the Court can use to monitor substance use for purposes of ensuring the safety of your children. Where your concerns are quite serious, the court may order that a Substance Use Evaluation be conducted by an expert pursuant to C.R.C.P. 35(a) and C.R.S. 14-10-124.
A Substance Use Evaluation involves interviews, alcohol and drug screening and assessment/diagnostic instruments, drug and alcohol testing at a testing facility, collateral and personal interviews, and review of data from medical professionals related to both health and mental health issues. This process can be requested in conjunction with the appointment of an independent expert, such as a Child and Family Investigator (CFI) or Parental Responsibilities Evaluator (PRE) by the Court in your case.
A CFI is not trained or certified to conduct Substance Use Evaluations; however, a CFI has the authority to request a mental health or substance use evaluation from the court for one or both parties as part of their investigation. A PRE may have the training and qualifications to conduct a substance use evaluation themselves, but a PRE may also outsource any such evaluation to an expert that specializes in substance use and abuse issues.
When you request that a party undergo a Substance Use Evaluation, it is important to simultaneously request that the party’s substance use be monitored during the pendency of the evaluation. Without this request, your concerns may be considered to be without merit. Substance use monitoring can include urinalysis testing (UA’s), hair follicle testing, nail or toenail testing, PEth blood spot testing, or the use of a monitored handheld breathalyzer, among others.
Generally, if these tests are required of a parent, their parenting time is conditioned on clean tests. These tests can either be used in conjunction with one another or separately to ensure that you, the court, and the evaluator has all of the information that they need and to ensure the safety of your children. When selecting a testing facility, it is important that the monitored party goes to a reputable testing facility to ensure the accuracy of results.
If you are concerned about substance use in your case, GEM Family Law is here to assist you. Our attorneys have extensive experience in handling cases involving substance use and abuse concerns. Give our main office a call at (303) 317-3239 to schedule your free virtual initial consultation today.
Authored by: Chelsea Augelli, Associate Attorney.