Best Ways to Regain Custody After Drug Abuse: Understanding Your Rights in Addiction Recovery and Child Custody Cases

September 27, 2022
  |  UPDATED:  
April 1, 2024

Can a recovering alcoholic or drug user regain child custody after the Family Court ruled against them because of their substance abuse? 

If the Family Court's decision to deny or restrict your child custody rights hinged on your past struggles with alcohol abuse or drug abuse, it's important to be aware that there is a pathway to demonstrate your commitment to sobriety and potentially regain custody.

Parents who once struggled with drugs or alcohol addiction but subsequently completed rehab treatment and achieved recovery often want their parenting time back. These parents want to rebuild fractured relationships with their children – relationships they never intended to damage or destroy. But fighting addiction is hard, and many parents succumb to life’s pressure, pain, and stress by self-medicating with alcohol or drugs.

So, “Can a recovering alcoholic get custody?” In many cases, the answer is “yes.”

If you are struggling with addiction, your right to visitation, parenting time, or overall child custody rights can legally be limited until you can demonstrate a period of sustained sobriety. You retain your right to continue a relationship with your child. Still, the Court can restrict visitation in any way it decides would be in the child's best interests.

The extent to which child custody and visitation are affected often depends on the severity of a parent’s alcohol dependence or drug addiction. Regarding cases involving alcoholism, Family Courts are primarily concerned with implementing appropriate safeguards so a child may continue to flourish under both parents’ guardianship.

It’s unusual for a Family Court Judge to want to keep children from their parents. However, a Court's paramount consideration when determining issues of access to a child is the best interests of the child, not the parent.

Addiction, Dependence, and Substance Abuse

These three words are often used interchangeably. However, they can reference prescription drugs, illicit drugs, or alcohol. The language you use to describe your past or current substance abuse may affect your child custody or co-parenting arrangements. Regaining custody once lost is difficult in any circumstance, but it is especially challenging to regain custody after drug or alcohol abuse. With commitment and persistence, parents can demonstrate their recovery, and increased parenting time can be achieved.

Man sitting on a couch looking at the Soberlink app on his tablet


Addiction can be used to describe a condition of dependence upon and/or craving for an addictive substance. In general terms, addiction is defined as a psychological compulsion to consume a habit-forming substance. A person with an addiction is someone who depends upon or irresistibly craves illicit drugs, prescription drugs, or alcohol. Although alcoholism is one of the leading addictions in the US,  less than 10% of people diagnosed with Alcohol Use Disorder (AUD) in the US have received any treatment.

In trying to regain custody, seeking treatment will always be looked upon favorably by family members and the Court. And there is no shame in getting treatment more than once. After all, addiction to drugs and alcohol doesn’t just disappear. Misusing drugs and alcohol remain a temptation for many people well after they establish recovery. Considered Substance Use Disorders (SUD), drug and alcohol abuse are chronic diseases, much like diabetes or heart disease.


Dependence upon a substance may be considered more benign, such as when someone "depends" on high blood pressure medication or antidepressants to live a healthy and happy life. If they needed to stop that medication, they would need to wean themselves off over time.

Drugs can often cause severe withdrawal symptoms even if the drugs are performing a beneficial purpose during their use. The body’s negative response when someone stops a medication manifests their dependence. Doctors and drug manufacturers often warn against suddenly stopping certain drugs.

Dependence on a prescription drug to maintain someone’s health is not typically a fact that a Family Court Judge would consider negatively. However, "dependent" (upon that specific substance) can also describe an individual who abuses drugs or alcohol.

Alcohol Abuse

Alcohol abuse, clinically known as AUD, describes the craving or strong desire to consume alcohol. An AUD is typically diagnosed when an individual's alcohol consumption disrupts their significant responsibilities at home, in the workplace, or at school. Binge drinkers, individuals who exhibit one of the deadliest forms of excessive alcohol use, are categorized as substance abusers. Chronic drinkers often suffer liver dysfunction as well as other serious medical problems.

We often don't think of alcohol when someone speaks about drug addiction, but alcohol is one of the most widely used drugs in the world.

Regardless of the technical term, admitting your history of alcohol abuse and committing to recovery can affect how a Judge determines your fitness to regain child custody or unsupervised parenting time.

Legal and Physical Custody

Mother and daughter meeting with lawyer

There are two forms of custody granted in divorce proceedings. Alcohol abuse by one parent is an essential factor in both legal and physical custody.

Legal custody is the parent's right to participate in decision-making regarding the child's upbringing, including medical concerns, religious affiliation, and education. Whether the child attends a public or a private school is an example of a legal custody issue.

Physical custody, however, refers to where the child will live after divorce proceedings. Obtaining physical custody of one or more children after abusing drugs is challenging. Still, Judges often grant joint or even exclusive physical custody to a parent recovering from their addiction after successful rehab treatment. A recovered addict whose co-parent continues to abuse alcohol or drugs is more likely to regain child custody.

Joint and Sole Custody

Legal custody and physical custody can themselves be broken down into terms of joint custody and sole custody. For example, in joint legal custody, both parents have a say in the critical parts of their child's life.

When sole legal custody is granted, the Family Court Judge determines that only one parent is able and qualified to make important decisions regarding the child's health, education, and other character-forming influences.

Courts prefer to award joint legal custody to assure both parents have equal authority and to ensure the child can foster relationships with both parents. However, if the Court thinks one parent’s addiction poses a risk to the child, then the Court will be inclined to decide in favor of sole legal custody for the parent not suffering the addiction.

How Child Custody is Awarded

Man in recovery holding his small child

The standard guiding most Family Law Courts is the child's best interests. Judges determining what is most beneficial for the child in a custody case will often consider the following in making their custody ruling:

- The child’s age, as younger children need more hands-on care;

- Each parent’s living situation and ability to provide;

- How best to maintain a consistent routine for the child;

- The impact of any proposed change to the child’s current routine or lifestyle;

- The physical safety and emotional well-being of the child.

A Judge may also consider the child's wishes if the child is old enough.

Proving Unfit Parenthood

Courts will consider restricting or denying custody or parenting time if one parent can successfully prove that the other party’s drug and/or alcohol use renders them incapable of providing the child with the right level of care.

Many parents have lost custody rights because a Court determined that their alcohol abuse presents a risk to their child's well-being. To reach that decision, the Court must be presented with convincing evidence that the parent in question has an alcohol dependency affecting their behavior or a very recent history of engaging in unsafe alcohol consumption. The use or abuse of alcohol or drugs is only of concern to a Court because it threatens the child's well-being.

In most states, driving under the influence of alcohol or drugs with a minor in the car is subject to enhanced penalties, higher fines, and a potential for longer jail. In addition to the danger of injury to a child involved in a DUI accident, the effects of alcohol impair a person’s mental acuity, slows their reaction time, and affects their judgment. All of these effects of alcohol could lead to an injury to a child in the care of someone abusing alcohol.

An accused alcohol abuser’s repeated refusal to enter into any rehab treatment program also supports the restriction or denial of custody in the Court's view. Treatment in any form, outpatient rehab or a residential rehab program, is a positive development essential for anyone seeking custody after drug abuse, no matter their substance of choice.

Documenting Evidence of Addiction

If your spouse is concerned that their child’s safety is at risk because you are demonstrating unsafe or abusive behavior related to alcohol or drug abuse, they can request court-mandated drug and alcohol testing. Failure to comply with the testing regimen or failing those tests could result in the denial of your custody. During the testing period, the person with the substance abuse issue is typically allowed only supervised visitation.

Either parent may submit evidence to prove or disprove detrimental alcoholic behavior or other examples of substance abuse. Such submissions could entail documenting places and times of the person’s improper or excessive use of alcohol (such as social media posts) or obtaining statements from others who have witnessed the behavior.

Convictions for alcohol-related offenses, arrests for driving under the influence, tickets for public intoxication, and video or audio evidence reflecting a history of disruptive life events because of alcoholic behavior are valuable sources of proof.

Evidence of employment infractions (such as being fired for showing up to work inebriated) will also dissuade a Judge from awarding custody to the substance-abusing party. Of course, an accused parent can overcome this if they can defend themselves with reliable evidence of their sobriety.

Balancing a Parent’s Rights

Two people discussing parent's rights in a legal setting

A Judge’s responsibility is to protect your child while upholding each parent’s fundamental right to be a part of their children’s lives. However, if one parent’s substance abuse presents a risk of harm to the child, the Court can limit that parent's access to the child to whatever degree is necessary to protect the child.

However, this does not mean that the Court will bar the parent struggling with alcoholism from having any contact with their child. Even if the Court awards sole legal and physical custody to the concerned party, it could grant conditional visitation for the parent with the Alcohol Use Disorder. The determining factor will be whether the addicted parent can ensure sobriety before and during any visitation. When a parent with limited visitation is engaged actively with rehab, Judges will often reward that genuine commitment with an incrementally less restrictive visitation schedule.

One of the conditions might be that the parent has to abstain from drinking for some time before the visitation; if the parent violates this condition and there is documented proof that they have resumed their addictive behavior, they may be temporarily stripped of their visitation rights until they can demonstrate that the Court can trust them again.

Can a Recovering Alcoholic Get Custody?

Child advocates, the Courts, and often the concerned party's attorney will collaborate with alcohol recovery programs to help parents struggling with alcohol abuse maintain or regain some parental role in their child's life and, often, shared custody. To regain child custody, an alcoholic's history of substance abuse must be outweighed by convincing evidence of a recovery sustained for a substantial period.

Each State handles such child custody issues in slightly different ways. Generally, the longer you’ve been sober, the better your chances are of regaining child custody or unsupervised visitation rights. It helps if you completed rehab, enrolled in an alcohol treatment program, and are currently getting therapy. It also helps if people are willing to attest to your commitment to sobriety, recovery, and, most importantly, to your child.

One of the truisms of substance abuse recovery is that relapse is part of recovery. Virtually all participants in rehab programs suffer some failure before they fully succeed in managing their addiction.  Rehab is an ongoing process that may need to be reinforced by attending regular meetings in a rehab group. Any effort to regain custody of a child will require a long, sustained, demonstrable period of sobriety.

Every day a person recovering from an addiction can demonstrate their sobriety is another step toward persuading a Court and your co-parent that they can trust you on your own with your child. Getting treatment is imperative.

Can You Demonstrate a Commitment to Sobriety?

Man laying on a couch about to submit a Soberlink test on his phone to prove his sobriety

If you struggle with alcohol abuse, a Judge may direct you to provide proof of sobriety as a custody stipulation.

Increasingly, across the country, such court-admissible documentation is provided by the remote alcohol monitoring program Soberlink.

For many struggling individuals, this added accountability can help rebuild trust in familial relationships as well as help improve the recovery process. In custody and alcohol abuse cases where a child’s safety is in question, A Judge can order a comprehensive sobriety verification system that offers real-time results, providing peace of mind to Concerned Parties and court officials.

Innovative tools like remote alcohol monitors provide documented evidence that the user of the device has not been drinking. Testing can be completed 2 to 3 times a day or only during parenting time, depending on what is agreed upon or mandated by the court.

It would help to incorporate these useful devices and ongoing treatment into your plan to impress a Judge and your family members with your commitment to sobriety and child safety.

While remote alcohol monitoring does not replace treatment, it can be used in conjunction, helping to prove your successful abstinence. Monitoring systems like Soberlink provide accountability and transparency, so an individual is free from having to convince others of their sobriety.

Not only do these tools help parents maintain a relationship with their child, but they also help foster the family’s confidence in the child’s safety in otherwise risky co-parenting arrangements. Further, upon a Court’s review of your progress, a Judge may modify your parenting plan if consistent progress is evident.

Even if you are not seeking custody of your child, Family Law professionals and court personnel will insist that you are responsible for maintaining your sobriety. A child deserves a safe, stable, and healthy environment, and they believe that responsibility falls on every parent.

The Bottom Line for Parents Seeking Custody

Father and son walking in the park

Millions of people divorce every year. Many of those individuals have families and children to care for. In unions where drug or alcohol addiction is present, and separation is imminent, families should know what options are available when pursuing custody.

For Concerned Parties fearful for their child’s safety, alcohol or an alternative form of monitoring may be requested to be introduced into a parenting plan. For parents struggling with addiction, a court order could be the ticket to regaining child custody or increased visitation hours.

Regardless of each individual's unique situation, addiction should not inhibit a parent from establishing and enjoying a healthy relationship with their child. This is especially true given how technological advancements like remote sobriety monitoring devices are helping countless people achieve their litigation goals.

Gaining Unsupervised Visitation or Shared Custody

Lawyer and client reviewing documents in a meeting

Your best chance of gaining or regaining child custody, unsupervised visitation, or shared custody is demonstrating to the Judge that you are establishing healthier habits by showing court-admissible proof of sobriety, completion of addiction rehab, participating in an ongoing recovery program, or evidence of behavioral therapy.

While laws are in place to protect the children in custody litigation first and foremost, there is also legislation preserving the fundamental rights of every parent. Do your research, know your rights, and be willing to make the necessary changes so that you may be awarded ample time with your child despite past or present chemical dependence.

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