Substantively Addressing Substance Abuse

• Publication year: 2020
• Author: Shannon Wolfrum, CFLS

Substantively Addressing Substance Abuse

Shannon Wolfrum, CFLS

Shannon K. Wolfrum has been an attorney for 15 years, practicing family law exclusively for the duration of her career. Ms. Wolfrum is a Certified Family Law Specialist. She has served on the Board of Directors of the Family Law Section of the Contra Costa Bar Association for the past five years and is the current President of the Board. She has organized all continuing education on child custody for the past three years for the Contra Costa Bar Association and recently taught a program on child custody for CEB OnDemand. She is a member of California Women Lawyers and the University of California, Berkeley Alumni Association.

The phone rings. Your client is calling to tell you one of those things you do not want to hear:

"I got a second DUI last weekend. My wife doesn't want me around the kids alone anymore,"
or
"The school principal called and said the kids' mom smelled like alcohol at school pick-up this afternoon."

In family law, these statements may not shock us, but there are few primers on how to approach the issue. This article is an overview to assist you in substantively working with your client and the court in relation to substance abuse and child custody.

In late March 2020, during the COVID-19 crisis, alcohol sales in the United States increased by 55% in one week.¹ Internet jokes about alcohol now abound, "When this is all over, I don't know where to go first - AA or Weight Watchers!" Kidding aside, the stress and isolation produced by the COVID-19 crisis and shelter-in-place orders may spark a wave of divorces as has happened in other countries² and some of those cases will inevitably include substance abuse issues.

1. Determine the Risk of Actual Harm

In ascertaining the scope of the issue, it is helpful to put aside personal judgment. A client who feels judged is less likely to be candid.

Substance abuse impacts people of all genders, ages, ethnic backgrounds, levels of education, socio-economic situation, and in all geographic locations. A study by the Journal of Addiction Medicine suggests that 1 out of 5 attorneys have an alcohol or drug dependency issue.³ While we may hear more about alcohol abuse, recreational and medical marijuana, prescribed medications, and illegal drugs are also concerns.

Asking pointed questions may assist in getting a complete picture from a client. What substance is being consumed? How much? How often? What time of day? What days of the week? For how long? How will the parent handle emergencies? Are substances left in a place where a child might accidentally poison themselves? Might a child access the substance for their own use? Is there physical danger to a child? Is the parent/client incapacitated from parenting while using substances?

Another way to obtain important information is to ask, "What do you expect the other parent will say about you?" This question allows a client to be open about their substance abuse and allows clients to view you as helping them. Depending on the answer to this question, you may find the first issue is to suggest resources to the client to address their own problematic use of substances.

2. What Can the Court Do?

Under Family Code section 3011(3)(d), the court may consider: "The habitual or continual illegal use of controlled substances," and "the habitual or continual abuse of alcohol, or the...