Understanding Your Rights When Dealing with Addiction, Recovery, and Child Custody

September 27, 2022
  |  UPDATED:  
December 20, 2022

Can a recovering alcoholic get custody? This phrase generates hundreds of searches online each month. And there's a good reason for that. Parents who have struggled with alcohol addiction or substance abuse and subsequently go through recovery or intend to seek some recovery treatment typically want their parenting time back. This population of parents often want to rebuild relationships with their children. For many, they never wanted to destroy their relationships. But life happens, and many times, unfortunately, parents succumb to pressure and handle the pain and stress by self-medicating with alcohol.

That said, the simple answer to “Can a recovering alcoholic get custody?” is: In many cases, “yes.”

If you are struggling with addiction, understand that your right to visitation, parenting time, or overall child custody rights may be affected. However, certain parental rights could remain the same; you have the right to maintain a relationship with your child so long as contact is achieved safely and remains in the child's best interest.

The extent to which child custody and visitation are affected often depends on the severity of a situation. With regard to cases involving alcoholism, the Courts are often most concerned with implementing appropriate safeguards so that a child may continue to flourish under both parents’ guardianship. No Court is interested in keeping children from their parents. However, a Court's primary consideration when determining issues of access to the 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.

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. Typically, someone is referred to as an addict if they depend upon or uncontrollably crave illicit drugs, abuse prescription drugs, or abuse alcohol. Alcoholism is one of the leading addictions in the US, with less than 10% of people diagnosed with Alcohol Use Disorder (AUD) in the US having received any treatment.


Dependence upon a substance may be considered more benign, as when someone "depends" upon high blood pressure medication or antidepressants to live a healthy and happy life, and if having to stop that medication, they would have to wean themselves off over time. Dependence on a prescription drug is not necessarily negative when a health condition warrants it. An individual who abuses drugs or alcohol can also be described as "dependent" upon that specific substance.

Alcohol Abuse

Alcohol abuse, clinically known as AUD, is used to describe the misuse of alcohol. Binge drinkers, individuals who exhibit one of the most deadly forms of excessive alcohol use, are categorized as substance abusers.

No matter the technical term, being transparent about your history of alcohol abuse and commitment to recovery can affect how a judge determines your fitness for child custody or unsupervised parenting time.

Legal and Physical Custody

There are two forms of custody at the heart of divorce proceedings when a parent’s alcohol abuse is a factor: legal and physical custody.

Legal custody is the parent’s right to be a part of the decision-making processes 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.

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. In cases of sole legal custody, the Judge determines that only one parent is able and qualified to make those decisions.

Courts prefer to award joint legal custody to assure both parents have equal authority and that the child can foster relationships with both parents. However, if the Court feels that one parent’s alcoholic behavior poses a risk to the child, then the Court may be inclined to decide in favor of sole legal custody.

How Child Custody is Awarded

Man in recovery holding his small child

Most Family Law Courts are guided by the ‘best interests of the child’ standard, which assists Judges in determining what's most beneficial for the child in a custody case. Before making a custody ruling, a Judge will often consider:

  • 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.

If the child is old enough, a Judge may also consider the child's wishes.

Proving Unfit Parenthood

If the situation presents itself, a Court will consider whether one parent can successfully prove that the other parent's drug and/or alcohol use and the resulting behavior renders them incapable of providing the child with the right level of care.

Many parents have lost custody rights because a Court determines that their alcohol misuse presents a risk to their child's well-being. To get to that point, the Court must be presented with evidence that the parent in question has an alcohol dependency and a history of engaging in unsafe alcohol consumption.

Documenting Evidence of Addiction

If your spouse is concerned that their child’s safety is at risk because you are demonstrating alcoholic-like behavior, your spouse can request court-mandated drug testing. Failure to comply with the testing, or failed tests, could result in you being denied custody or unsupervised visitation with the child. 

Either parent may submit evidence to prove or disprove alcoholic behavior or other examples of substance abuse. This could entail documenting places and times of the improper 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 or tickets for public intoxication, video or audio reflecting a history of disruptive life events because of alcoholic behavior, or proof of employment infractions (such as being fired for showing up to work inebriated), will also likely sway a Judge against awarding custody to the accused party if that parent is unable to defend themselves against the accusations of alcohol abuse.

Balancing a Parent’s Rights

Two people discussing parent's rights in a legal setting

A Judge’s responsibility is to protect your child (or children); however, to the degree that the child is not harmed, Courts will also try to uphold a parent’s inherent right to be a part of their children’s lives until the children are old enough to make that determination for themselves.

However, this does not mean that the parent struggling with alcoholism will be barred from having any contact with their child. Even if sole legal and physical custody is awarded to the concerned party, conditional visitation for the parent with alcohol abuse could be granted.

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 alcoholic 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 alcoholism maintain, or regain, some parental role in their child’s life and, often, shared custody.

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

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, such court-admissible documentation comes from 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, Family Courts can order a comprehensive system that offers real-time results, providing peace of mind to Concerned Parties and court officials. Innovative tools like this not only help parents maintain a relationship with their child but help foster child 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, as far as court personnel is concerned, you have a responsibility to maintain 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

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 imminent, families should know what options are available when pursuing custody.

For Concerned Parties fearful of 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 receiving shared custody of their child.

Regardless of each individual's unique situation, addiction should not inhibit a parent from sustaining a relationship with their child. This is especially evident, given how technological advancements are helping countless people achieve their litigation goals.

Gaining Unsupervised Visitation or Shared Custody

Your best chances of gaining unsupervised visitation or shared custody are to demonstrate to the Judge that you are establishing healthier habits by showing court-admissible proof of sobriety, completion of an addiction 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 favoring the parent. Do your research, know your rights, and be willing to make the appropriate changes so that you may be awarded ample time with your child despite past or present chemical dependency.

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