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25-403.04 Substance Abuse

Substance abuse and child custody don’t mix well. Judges consider evidence of substance abuse to be a red flag when deciding child custody.

Some of my clients accused of substance abuse want to immediately go get a drug test or alcohol analysis. These test reports can be excellent evidence for a parent falsely accused of substance abuse. What if you are accused of substance abuse but the allegations may have some merit? Or the allegations are old and you are no longer using drugs or alcohol?

Substance abuse and child custody is a tricky area. I know lawyers say this a lot, but seek legal advice. We know experts who frequently testify in courts who can help you prove a negative. And proving a negative, when accused of abusing drugs or alcohol, is exactly what you may have to do.

A. If the court determines that a parent has abused drugs or alcohol or has been convicted of any drug offense under title 13, chapter 34 or any violation of section 28-1381, 28-1382 or 28-1383 within twelve months before the petition or the request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child’s best interests. In making this determination the court shall state its:

1. Findings of fact that support its determination that the parent abused drugs or alcohol or was convicted of the offense.

2. Findings that the legal decision-making or parenting time arrangement ordered by the court appropriately protects the child.

B. To determine if the person has rebutted the presumption, at a minimum the court shall consider the following evidence:

1. The absence of any conviction of any other drug offense during the previous five years.

2. Results of random drug testing for a six month period that indicate that the person is not using drugs as proscribed by title 13, chapter 34.

3. Results of alcohol or drug screening provided by a facility approved by the department of health services.

Substance abuse can be a real problem in families. There are several factors that affect a court’s decision about child custody. Click here for A.R.S. §25-403 for the “best interest factors” a court must consider in awarding custody or legal decision-making in a contested case. Want to know more about sole legal decision-making? Click here to read A.R.S. §25-403.01. Click here for the Arizona Revised Statute on Parenting Plans, A.R.S. §25-403.02.

If one parent is involving dangerous people in a child’s life, this is an enormous concern for the courts.  Click here for the Arizona Revised Statute concerning people involved with violent crimes or child abuse. Substance abuse and domestic violence against children can often go hand in hand. Read the statute concerning Domestic Violence and Child Abuse at A.R.S. §25-403.03 here.

What if your court order was issued less than a year ago?  A.R.S. §25-411 carves out some exceptions if you need to move to modify your parenting plan now because your child is in danger.