Proving Drug Abuse in Custody Cases In Florida

A parent must be able to identify an impaired parent and prove it to the family court to protect their child. Here we discuss how it’s done.

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We already know that children are at risk of emotional harm during the process of dissolution of marriage. But it is the children of an impaired parent who stand to suffer the most when going through a divorce. That’s why it’s vitally important to identify parental impairments at the beginning of a divorce case and develop a plan to protect the children both during the child custody case and afterward.Handling Impaired Parents in a Florida Child Custody Case

In a situation where the impairment is not under control, we have a crisis that may be grounds for an emergency that needs to be quickly handled by a judge before any damage is done.

Now don’t be confused: emotionally divorce can be difficult on all parties and can lead to people acting less-than-perfect. But what we are talking about here are actual situations that impair parenting to the extent that we have to be concerned about the child’s safety and the effects that the impairment can have on their future.

All parents go through a rough time when dealing with the grief of separation and divorce. But a parent suffering from alcoholism and alcohol abuse to the extent that they are not able to function properly for their minor children is usually a situation in which we must immediately intervene due to alcohol use.

The first step in impaired parenting cases is to identify a possible problem. This is your spouse, and nobody knows the situation better than you. But to help analyze the problem, let’s take a look at the six types of impaired parenting cases that we see in Florida family courts:

Six Types Of Impaired Parenting


An alcoholic is someone who is ill because of a chemical dependency from alcohol use. This is a disease that is considered ever-present, because there’s no cure. The family courts are going to be concerned if a parent is an alcoholic and does not have their issue under control. Untreated alcoholism can cause a crisis and could lead to a dangerous situation with a child.

Florida child custody law specifically addresses alcohol abuse. One statute that addresses establishing a parenting plan states, “demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.”

There are some common physical symptoms of alcoholism when things are out of control: intoxication, slurred speech, unsteady gait or walk, impaired coordination, and slowed reflexes. It can be identified readily by the smell of alcohol, inappropriate behavior, glazed eyes, and slurred speech.


Impairment by substance abuse is similar to impairment by alcohol abuse, though often those engaged in drug abuse are also breaking criminal laws.

A couple of the biggest substance problems that we have in Florida include cocaine abuse and narcotic abuse. Abuse of the stimulant cocaine usually involves physical symptoms including brief and intense euphoria, restlessness, and feelings of well being. You may see indicators like glass vials, white powder, razor blades, or syringes around the house. Cocaine abusers are known to exhibit paranoia and severe depression.

Narcotic abuse is an overwhelming problem that Florida’s been fighting for more than a decade now. For years, the big issue has been prescription pills. These prescription pills, like hydrocodone or oxycodone, can alter mood, perception, reduce concentration, and leave the user euphoric. You may see indicators like white pills, crushed pills, and prescription pill bottles.

In one recent child custody case we had, a client of ours went to pick up her child (the parties were separated) from the father when she looked and saw her child starting to put a white pill-like substance into her mouth! She pulled the pill out of the child’s mouth, opened up her smartphone, Googled, and realized that the pill was a prescription drug! Obviously this is an extreme example of prescription drug abuse, but it does happen.


There is a presumption that when parties are going to divorce they are at least somewhat emotionally damaged — at least temporarily — as they go through the emotional stages of grief over the divorce. Adding to this dynamic, people with pre-existing psychological issues or trauma often see these issues come to the surface and exacerbated as a result of the emotional trauma of divorce. In these cases, intervention is imperative.

Often a professional evaluation is the best way to handle this. We will discuss court-mandated professional evaluations a bit later. However, it’s important to note that there is nothing stopping both parties from agreeing to seek psychological testing or professional evaluations if to do so will benefit the children and protect them in the long run.


Physical abuse that is reported to lawyers is often behavior that leads to police intervention in the family court system. Often, one party will physically touch or batter the other party, who will then call the police. Individuals are arrested. As a result, injunctions or restraining orders can be filed as an emergency stopgap to restrain an abuser from contacting their spouse and in certain circumstances their children.

Florida treats domestic violence extremely seriously. In fact, statute specifically states that if a parent is convicted of a first-degree misdemeanor or higher than involves domestic abuse, that there is a presumption that parent should not have unsupervised time-sharing with the children.

Unfortunately, there are child custody cases of domestic abuse that do not get reported to the lawyers. For those that are in that situation where they feel the need to be quiet, it’s important to note that domestic violence is something that children see and will replicate. If they are exposed to it enough, they will be impaired as they get older.

Arguably in physical abuse cases both the person who does the abusing and the victim should have treatment. Again, this is something that can be ordered by the family court as discussed below.


One of the worst impairments we see is that of a parent who continuously and maliciously works to alienate the child from the other parent. It should be noted that Florida statute specifically goes out of the way to say that this is bad behavior by a parent, and that the parent most fit to have majority time-sharing would be the one that nurtures and facilitates a good relationship between the child and the other parent.

Nonetheless, parental alienation in Florida is a real issue that must be addressed at the onset of the child custody case.

An alienated child is defined as, “one who expresses, freely and persistently, unreasonable negative feelings and beliefs like anger, hatred, rejection, and/or fear toward a parent that are significantly disproportionate to the child’s actual experience with the parent.”

It’s important to distinguish genuine parental alienation from a toxic situation of parents being unable to communicate, using children as confidants or messengers, or otherwise putting children in the middle of litigation.

Parental alienation cases require extensive work to prove, and almost always require utilizing a third-party expert such as a psychologist who is trained in identifying parental alienation to testify in front of the judge. Then the judge can make an appropriate ruling to protect the child from ongoing alienation.


In child sex abuse cases in a dissolution of marriage, we have immediate emergencies and complex issues that often require help from expert consultants and evaluators. Likewise, a guardian ad litem should always be appointed to represent the best interests of the children.

In every case where we suspect sex abuse in Florida, it’s important to immediately call the Department of Children and Families hotline to make a report. Afterwards, it is often important to file an emergency motion for injunction with the family court so that the issue can be immediately brought to the court’s attention and resolved.


So now that we know how to identify issues of impaired parenting for a child custody case, what’s the best way to go about proving it? In other words, what can you do as a parent in cooperation with your attorney to help prove the issue (or determine that it’s not really an issue at all), and then if necessary bring it to the court’s attention?

Almost always the proper course of action is to do a reasonable investigation right away. By gathering the facts at the beginning, you can create enough of a child custody case for the court to take notice and later order more intrusive things like psychological evaluations.


Statements of the Other Parent: Perhaps the first place to look is: has the other parent admitted to you that they have a problem? It’s not unusual in cases of substance abuse or alcohol abuse for the parent that has the problem to come to you and admit it. Your testimony is evidence. In this age of email and cell phone text messages, it’s wise to check to see if there any admissions on either of these two devices that could help your attorney.

Statements from Third-Party Witnesses: Likewise, third-party witnesses may have seen certain behaviors or heard statements that could be helpful in court. Perhaps just a few weeks ago, a neighbor saw your spouse acting out of control while under the influence of a substance.

Investigative Work: In certain cases it can be helpful to get investigative work done. There are private investigators who make a living by going through trash cans, videotaping, or otherwise scouting impaired parents to gather evidence that might be helpful in court.

Police Reports:  These can be fantastic evidence. For example, if your spouse was arrested for driving under the influence with your child in the car. The arrest report and the police officer’s testimony can be huge. Likewise, if it led to a conviction this can also be great evidence. As briefly mentioned above, if your spouse is convicted of a first-degree domestic battery charge then Florida statute presumes that this person shouldn’t have any time-sharing with your child.

Going To The Court To Get More Protected Information

Once you have gathered enough evidence to show that it looks like there is a problem, your divorce attorney can set a hearing in front of the judge to address the issue. In some cases, the evidence will be strong enough that a judge will be able to make an immediate ruling based on what you have presented. If there is a strong “smoking gun” evidence of impairment and a detriment to the child, the judge can make a ruling on potentially restricting time-sharing with the impaired parent to protect the child.

But in other child custody cases, especially with alcohol abuse or substance abuse, we end up with enough circumstantial evidence that tends to suggest there’s a problem but it’s just not enough for the judge to make a decision to restrict time-sharing. Remember, when in doubt in Florida the judges want to make sure that the children get substantial time with both parents. Restricting time-sharing with a parent is a big deal. Judges want to make sure if they’re doing it, they’re doing it right.

But in a child custody case where there is substantial circumstantial evidence that’s been gathered, it can be enough to get the judge to take it to the next level: to order more intrusive actions to really ensure that the child is safe. The big ones are drug testing of the impaired parent, psychological testing of the parents, and opening up health records of the parents.


In alcohol and substance abuse cases, the court has the power to order random urine testing to check for the presence of alcohol or drugs in somebody’s system. For several reasons, urine testing is usually the less preferable method to try to gather evidence. First, chronic alcoholics are able to eliminate alcohol rapidly. An alcoholic who is over the “legal limit” of a .08 blood level in an alcohol test may be able to completely eliminate that alcohol from his or her system in two to four hours.

If there was heavy drinking the night before, a random test in the morning may not do anybody any good. Likewise, a urine test for substance abuse is dependent on the drug. Marijuana, on one hand, will leave metabolites in the system for up to 30 days after a person has ingested it. But more serious drugs like cocaine and heroin can be eliminated two to four days after ingestion.


Because of the limitations of drug testing such as urine testing, hair testing has become the go-to choice in Florida courts. The science with hair testing continues to evolve and get better on a yearly basis. At this point, there are panel tests that will be able to test hair for alcohol and determine whether someone is a light user, moderate user, or heavy user. Likewise, panel testing for substance abuse can find traces of illegal substances like cocaine or heroin in a person’s hair months after ingestion.


Every person has a right to privacy in their medical records. This is true even in family law cases. But in cases where the parent’s ability to parent effectively is called into question, it’s not uncommon for a judge to order that health records be opened up so that everyone can see what’s going on.

This is perhaps most common in cases where there are psychological concerns for one or both the parents. Your attorney will want to first see if the other side will be willing to agree that the records will be open and available. However if not, your attorney will need to go in front of the judge and ask the judge to order that the records be released. This is always on a case-by-case basis, and it will depend on what is alleged and what sort of evidence we have that suggests there is impairment.


The final method to gather additional evidence using court intervention is to ask the court to order psychological testing of the impaired parent. Much like the health records in the hair testing in the urinalysis above, the key is that there is some evidence presented to the court that puts the children’s welfare in controversy — so that the intrusion on the impaired parent is outweighed by the potential benefit to the child.

Psychological testing is done in a narrowly targeted way by just asking the court to order it. Routinely, however, psychological testing is done when one of the parents asks the court to order a professional to make a parenting plan recommendation. Psychologists and other professionals who have specific training make parenting plan recommendations.

They analyze situations involving the children, go through all of the statutory factors, and make a recommendation as to what parenting plan would be best for the kids. One of the factors, of course, is the psychological makeup, health, and overall mental stability of both parents. Therefore, a professional with the right training often do psychological testing as part of completing a parenting plan.

What If I Am An Impaired Parent?

Knowing that the courts treat impairments of parents of seriously, what’s a parent to do if they do have an impairment and it’s putting them in a situation where they’re not able to act in the child’s best interest?

The answer is simple but difficult: get help. It is almost never the court’s intention to remove a parent from a child’s life unless the impairment is so grave that it has to be done (such as in serious sex abuse cases). In the more common impairment cases, there is an opportunity for the parent with the issue to take immediate action and make things right.

For example, imagine a case with a parent who is suffering from substance abuse. If this person takes action, attends Narcotics Anonymous meetings, begins treatment, and sees a therapist, then this person can quickly go a long way toward getting their house in order.

In due time, the judge will ensure that they will be able to exercise substantial and liberal time-sharing with the child and be a big part of their life. But the key is to get your house in order!

The responsibility will fall on the parent with the issue to prove to the court that they are doing well, and that is in the best interest of the child to have a substantial relationship with their parent.