In a Texas child custody case, the ability of you and your co-parent to raise your children is largely considered. The safety and well-being of your child is the paramount concern of any Texas court. As a result, factors like drug and alcohol abuse are critical when assessing your viability as a parent. To be sure, the prospect of drug testing concerning you serving as a parent should cause you to stop and think. Are drug tests a part of Texas child custody cases?
The term “custody” is one often used by Texas family courts. You don’t have to be involved in a family law case to be familiar with the term custody. It is one that we have all heard in our day-to-day lives. Certainly, when you enter into a co-parenting situation the term child custody becomes money will hear quite often. However, it may surprise you to learn that the term custody does not appear in the Texas family code.
Rather, conservatorship is the term used to describe the rights and duties a parent has concerning their children. This is despite how custody is typically used in place of the word conservatorship. For today’s blog post from the Law Office of Bryan Fagan, we refer to both terms. Ultimately, both words relate to similar subject matter which often overlap.
Abuse and neglect of children
The Texas Department of Family and Protective Services is tasked with protecting vulnerable populations in our state. Among those populations that it serves are children. Child Protective Services is the arm of this agency whose mission is to protect children from abuse and neglect. The agency receives reports of abuse and neglect anonymously. If a person witnesses what they believe to be an incident of abuse or neglect that report should be made to CPS.
The agency conducts investigations and collects evidence. That evidence is used to determine the likelihood of whether abuse or neglect occurred. CPS makes findings regarding abuse and neglect of children after their investigation. Depending upon the results of the investigation the agency may attempt to remove your child from your home and seek temporary custody. In extreme situations, termination of parental rights is recommended.
Abuse and neglect of children are relevant when it comes to drug and alcohol abuse. Unfortunately, drug and alcohol abuse tends to be one of the more common justifications for removal of a child. This is not to say that every CPS case involves the removal of a child. However, in extreme circumstances, it certainly becomes an option. When alcohol and drugs are involved that is a circumstance that would increase the likelihood that your child may be removed from the home.
Working with an experienced Texas family law attorney
Whether you are facing a family law case involving drugs and alcohol or a Child Protective Services case, an attorney can help you. The attorneys with the Law Office of Bryan Fagan assist families throughout Texas with cases just like these. Imagine a situation where your co-parent abuses alcohol or drugs. Your number one priority at that point is the safety of your children. However, where do you begin with the family law case? These are practical questions that Texas families wrestle with every day. You know where you want your case to go but don’t know how to get it off the ground.
Or you were just contacted by CPS about a report of child neglect. It is alleged that you were intoxicated and allowed your child to wander outside while you were sleeping off a long night of drinking. Would you know how to defend yourself in a circumstance like this? On top of that, there is the threat of having your child removed from the home. Where would you go from here? Who would you turn to for help?
The attorneys with the Law Office of Bryan Fagan are the type of advocates that you need in either of these situations. Our experienced attorneys offer a unique set of skills. These skills equip us to be able to help parents facing a family law case involving drugs or alcohol. For a free-of-charge consultation with one of our experienced family law attorneys simply contact our office today. We offer these consultations in person, over the phone, and via video.
Court cases that involve substance abuse
Family law cases oftentimes involve substance abuse. These are situations where you and your child are subject to drug testing. Unfortunately, even children may have to be drug tested if there are allegations or issues involving drug use and your child. However, for the most part, these issues revolve around parental drug use. If a court has reason to believe that you are abusing drugs, then you should accept to be drug tested throughout your case and even in the period after the case is over.
The question that many parents ask in this situation is what type of evidence is needed to substantiate a drug test. Most typically, testimony from a party is enough to merit a drug test being ordered. Samples needed in a drug test scenario include fingernails, hair, and urine. The costs of the drug test are most often paid for by the person being drug tested or their primary conservator. Or you and your co-parent can agree on this subject and split the costs of the drug testing. The cost of a drug test is only the beginning costs associated with drug use in a Texas family law case.
Passing a drug test
There is no easy way to pass a drug test. The only surefire way to pass a drug test is to not use illegal substances. You may have heard about products or services that claim to help people pass drug tests. The reality of these situations is that using a product like this typically results in an inconclusive test result. However, in most situations, this will merit you a failing result, anyway. Any medicine that you take that may elicit a positive test result should be disclosed to your attorney in court. Preferably this should be done before any drug testing. Prescription drugs you take which are not prescribed to you will harm your chances of obtaining custody of your child.
Protected healthcare information
A reasonable response to all of this is that your healthcare information is protected under various state and federal laws. Indeed, a person may not view your protected health care information unless they have your permission. This goes for several different sources as well as people in your personal life. A reasonable question to ask would be why a person in a courtroom has the right to view this material when others don’t.
In short, this protected health care information is a relevant issue in a child custody case when you’re opposing party presents evidence that it is. For instance, if there is credible evidence of drug or alcohol abuse in your situation then your medical records related to these conditions become a part of the case. A judge may subpoena records. Additionally, the information contained in those medical records can be sought through discovery. The impact of your drug and alcohol abuse, if any on your ability to raise your children becomes an issue.
What type of medical information is subject to being obtained in a divorce or child custody case? We can begin with prescriptions, hospital records, visits to the doctor, and counseling records. These are the types of records that your co-parent may seek to introduce into the evidence of your case. Certain providers, like therapists and counselors, are more hesitant to turn over treatment notes. However, even in situations like these much of your treatment information may be made available to the court for their consideration.
The impact of counseling on child custody issues
A major concern that many people have when it comes to counseling is that evidence of receiving counseling may negatively impact your ability to keep custody of your children. Can evidence of a mental health issue cause you to potentially lose custody of your children? In most cases, it is not a given that you will lose custody just because you have a substance abuse issue. Many judges are happy to see when a person receives treatment who needs it. This is true both for alcohol, drug, and other types of addictions.
Depending upon the type of treatment you are receiving changes to your conservatorship rights may be needed. For instance, daily outpatient treatment may not require much in the way of change to your current conservatorship rights and duties. However, a parent who receives inpatient therapy would not be able to fulfill their parenting responsibilities in most cases.
Suppose that you are the parent who has the right to determine the primary residence of your child. Next, let’s consider a situation where you have an addiction that requires inpatient psychiatric and substance abuse care. The question is what type of arrangements need to be made for your child? In a situation like that, you should work with your co-parent. There may be a provision in your current court orders that requires you to allow your co-parent to have an opportunity to take advantage of any extra time with your children. Or you should communicate and work out a schedule where your children stay with a relative of yours in addition to spending time with your co-parent.
What to do when you suspect that your co-parent is abusing drugs or alcohol?
It is a helpless feeling to know that your co-parent is abusing drugs or alcohol. You have no control over what another adult does with their body. This is not a pleasant place to be as a parent. Sharing custody with another person means trusting that person to make good decisions for your children. When you are not able to trust that person you are in a position where the well-being of your children is at stake every time they leave your home. What can you do in a situation like this?
Filing a child custody lawsuit to establish court orders is step number one. If you do not have court orders set up, then you need to strongly consider having them arranged. Child custody orders not only relate to things like visitation and possession of your children. Additionally, they relate to rights and duties for caretaking and other responsibilities. The better equipped you are to ensure the safety of your children the happier they will be. Restricted or supervised visitation may be necessary for your co-parent at this time.
As we mentioned earlier, conservatorship determines many important decision-making roles in the life of your child. Possession has more to do with being in physical custody of your children. Both are important as you are trying to build a life for yourself and your child. The presumption in a Texas courtroom is that parents make decisions that are in their child’s best interests. The use of illegal substances goes a long way to rebut this presumption, however.
A judge’s views on substance abuse
Let’s assume that you and your co-parent are involved in child custody or divorce cases. Let’s further presume that the two of you are unable to solve your problems in the marriage through negotiation. The same is said for child custody matters. In a situation like that, your case would go to a family court judge for a trial. As part of the trial, your family’s interaction with substance abuse becomes relevant.
Substance abuse history means that a court would need to be able to consider this evidence in light of your parenting abilities and other circumstances. Many families who go through child custody cases are ill-prepared when it comes to the subject of substance abuse. Even if you are a parent who does not abuse substances, you need to have a plan in place for custody issues. What are your goals for your children? Where is your evidence that substance abuse has played a role in the parenting life of your co-parent? What sort of structures do you have in place to keep your children safe? Just because you are a spouse who does not use drugs or abuse alcohol does not mean that you can expect the court to solve these problems for you.
Evidence showing substance abuse needs to be presented to the court as early as possible. This means thinking ahead and working with your attorney to obtain evidence that goes to show your co-parent’s unsuitable nature when it comes to parenting your child. The available evidence may be testimony from witnesses, documents, photographs, or medical records. Obtaining medical records, documents and other tangible evidence cannot be assumed to occur overnight. You may need to plan to receive these types of evidence.
Modifying court orders based on changing circumstances
Updating court orders to reflect current circumstances involving drug use or substance abuse does occur. What used to be a fondness for alcohol may have spiraled into full-fledged alcoholism. When you are in a situation where your child has visitation periods with an alcoholic you have decisions to make. How can you adjust those schedules to protect your child? Your co-parent’s ability to spend time with your co-parent is not at the top of your list of priorities. However, a judge would care about that issue, as well.
A modification of child custody orders can occur when the best interests of your child align with a material and substantial change in circumstances. Modifications can take time to process, as well. However, a situation involving a parent with alcoholism has an immediate need for action. Requesting an emergency modification hearing accomplishes your goal of immediacy. You enter a hearing where your co-parent does not have to be provided notice. Present your evidence showing why an immediate modification is needed.
If granted a temporary modification a hearing with your co-parent must occur within two weeks. At this hearing, you must supply evidence to show that the prior modification must be extended. Realistically, no condition that was in place at the prior hearing would have been eliminated in a matter of days. However, you are still obligated to be ready to present evidence.
No matter what you are going through in a child custody case the Law Office of Bryan Fagan is here to help you. We know what it takes to be successful in a child custody case involving substance abuse. Thank you for choosing to spend time with us today here on our blog.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
