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Substance Use and Child Custody

Child Custody & Visitation

Substance abuse can affect a parent's custody and visitation rights, and may even qualify as neglect or abuse.

Your rights as a parent when your child uses substances

As a parent, you have the right to consent to your child receiving medical care until they turn 18. If you are divorced from your child’s other parent, or the other parent’s legal rights have been terminated, your specific rights regarding your child’s medical care will be determined by the most recent court order.

In an emergency, a paramedic, doctor, nurse, or other medical provider can treat a child without the parents’ consent if it is necessary to preserve the child’s life or prevent serious harm.

A child can consent to their own medical treatment for substance or chemical addiction, substance or chemical dependency, or any other condition directly related to substance or chemical use. Your child can also consent to their own counseling for suicide prevention, chemical addiction, or dependency;, or for sexual, physical, or emotional abuse.

When a parent cannot be reached in an emergency, there are several options for who can agree for the child to receive medical treatment. The law allows grandparents, adult siblings, and adult aunts or uncles to give consent. The parent or conservator can also provide written consent for the child’s school or a particular trusted adult to authorize medical care for a child. For example, if a parent has to travel for work and leaves the child in the care of a neighbor or a family friend, the parent can provide written consent for these trusted adults to take their child to the hospital.

In cases where a government agency has custody of a child, such as juvenile detention, an adult responsible for the child can give consent in lieu of the parents. If the child is in the lawful custody of a peace officer and that officer believes the child needs immediate medical attention, the officer can provide consent. Lastly, the court that issued custody orders for the child can also consent to medical treatment for the child.

Both Texas and federal law require doctors and other medical providers to keep medical information confidential. Typically, the parents or conservators of a child are entitled to receive the same information about the child’s medical care as the child themselves. However, there are some exceptions. A medical provider cannot disclose protected health information when the child obtains medical care on their own without the parent’s consent. Likewise, if a parent agrees to a confidentiality agreement between the child and the provider, the provider cannot disclose protected health information to the parent afterwards.

Children who are either pregnant or parenting their own children can also consent to their own medical care in certain situations.

Your rights as a parent while living with Substance Use Disorder and Opioid Use Disorder

Substance use can come up in court battles over custody. All family courts in Texas can and will order parents to take a drug test if there is reason to believe that parent is using or abusing substances. A person’s testimony in court is enough to order a drug test. This can require a quick urine sample or a hair or fingernail sample. The cost for a drug test can range from $25 to $400 and is usually paid by the person taking the test.

There are products on the market and various “techniques” that claim to enable people to pass a drug test. Most often, these products or methods trigger an inconclusive result, which courts may treat the same as a positive result. Certain legally prescribed medications can cause a positive result. You should be prepared to disclose any medications you are taking. However, if you are taking more medication than you have been prescribed, or if the judge finds that your use of prescribed opioids has hurt your ability to care for your children, you may lose custody.

Although Texas and federal law protects a person’s health information, this information may be allowed as evidence in a custody lawsuit. If the other side alleges that your medical condition or treatment negatively affects your ability to care for your child, they can ask for you to turn over information. This could include your records from your doctor, prescriptions, counseling, hospital visits, and more.

Often people are afraid they will lose custody of their kids if they get treatment for substance use, including opioids. Typically, judges are happy when a parent voluntarily gets treatment, whether that looks like inpatient rehab, an intensive outpatient program, medical assistance, or counseling. When a parent can show that they are committed to their recovery, it shows they are committed to providing a safe, stable environment for their child.

How a parent’s substance use will impact the custody of and visitation with their child depends on various factors such as the length and severity of the use, the specific steps they are taking to address the use, how long they have been in recovery, and any other things they have done to ensure their child will be safe.

You may decide to seek treatment that will require your child to stay with another trusted adult. If your custody orders named you as the parent with the exclusive right to determine where your child lives, you can choose for your child to stay with grandparents, aunts, or uncles, or another relative or friend you trust. You can complete a form that will give this person the legal ability to handle important issues for your child. This form is called an Authorization Agreement for Voluntary Adult Caregiver.

Your rights as a parent when you know or suspect the other parent uses substances

When you and your child’s other parent are no longer together, you will likely need a court order for custody of your child. In Texas, custody has two parts. One part is called conservatorship, which determines who makes which important decisions about your child. The other part is called possession, which is who the child spends time with and when. Both Texas law and federal law requires a judge to presume that a parent is acting in their child’s best interest and should have frequent and continuing contact with their child.

The judge will consider a parent’s use of substances when making a custody order. If you know or suspect the other parent is using substances, including opioids, you can bring this to the judge’s attention. You need to explain why you believe the parent is using substances. If the judge finds that the other parent is using substances in a way that is dangerous for your child, the judge is required to limit that parent’s decision-making rights and/or visitation with your child. The judge is allowed to restrict or limit a parent’s rights only to the extent necessary to protect the best interest of the child.

Sometimes you need to change your existing custody orders to protect your child. If you want to change who decides where your child lives most of the time, and your custody orders are less than a year old, you must show the judge that either:

  1. the person with primary custody is asking for or agrees to the change, or
  2. the child’s present environment may endanger the child’s physical health or significantly harm the child’s emotional development, or
  3. the person with primary custody has allowed someone else to have primary care and possession of the child for at least six months. (Number 3 does not apply if the person with primary custody is on active-duty military deployment.)

Whether you need original custody orders or to modify your existing orders, you can ask the judge to sign a temporary order to protect your child in an emergency if you are worried about the child’s immediate safety with the other parent. Note that an emergency order is usually part of a case seeking a long term solution. For example, you can ask for an emergency order while the court considers your request to modify existing orders.

Your rights as a relative or family friend to protect a child when a parent uses substances

Sometimes you may need to step in to care for a child when you know their parent is using substances. 

 If you are suddenly caring for a child in this situation, the most urgent need is making sure the child’s basic needs are met: shelter, food, clothing, education, and medical care. If possible, ask the parent if they have or can complete an Authorization Agreement for Voluntary Adult Caregiver

This form allows a nonparent to make important medical and educational decisions for the child. Ask the parent for a copy of the child’s health insurance card or Medicaid or CHIP information so that you can take them to a doctor if necessary.

If the parent is unable or unwilling to communicate with you, contact your local school district or the district where the child is currently enrolled. Every school district is required to have an advocate for children in this situation. This person can help you enroll the child in school and connect you with other services to ensure the child’s basic needs are met.

You can also ask a judge to issue orders to give you temporary rights to care for the child. 

When you need a long-term option to care for a child, you may be able to ask a court for custody orders. You can ask a judge to issue custody orders for a child in your care if you are an adult who:

  • recently had six months actual care and control of the child, or
  • has lived with the child and a parent for six months if the parent has died.

Typically, the judge will presume that the child should live with a parent. However, if the parent has left the child with someone else for a year or more, the judge can presume that the parent is not the best person for the child to live with.

You may be worried about a child who isn’t yet in your care. Certain family members can ask the judge for custody if they are concerned about a child due to a parent’s substance use. Grandparents, aunts, uncles, and adult siblings can file for custody of a child if they show the judge that:

  1. the child’s present circumstances would significantly impair the child’s physical or emotional wellbeing,
  2. the parents have died, or
  3. the parents agree.

Depending on your situation, there are very specific legal requirements you will need to meet to get custody of a child when you are not that child’s parent. Here is a general overview of how to request custody of child when you are not their parent.

You may also be able to ask the judge for custody of a child when CPS has taken the child out of their home. 

Your rights when CPS is involved.

Reports of child abuse or neglect are investigated by Child Protective Services (CPS), a division of the Texas Department of Family and Protective Services.

Abuse includes the use of a controlled substance by a parent that results in physical, mental, or emotional harm to a child. 

Neglect is defined as anything a person does or fails to do that results in harm to a child or creates an immediate danger to the child. This includes putting the child in a situation they cannot handle due to their age or failing to give a child necessary food, clothing, or shelter.

 All adults, but specifically people who work with children such as teachers and medical professionals, are required to report suspected child abuse or neglect to CPS. After receiving a report of possible child abuse or neglect, CPS has a duty to investigate. An investigator will look at the child’s home, talk to the parents and other adults in the child’s life, and talk to the child depending on how old the child is. They may ask a parent to take a drug test. If the investigator has an immediate safety concern, they may implement a safety plan or even remove the child from the home.

Although a CPS investigation can be scary and feel invasive, their goal is always to keep children with their families if it is safe. A positive drug test doesn’t always mean CPS will take children out of their home. When CPS has safety concerns for a child due to a parent using opioids, there are several options. If there is another adult in the home, CPS can ask the parent to agree that all interactions with the child be supervised by that adult. The parent can agree for the child to stay with a trusted friend or family member temporarily. During this time, CPS will expect the parent to accept Family-Based Safety Services, such as mental health and substance abuse evaluations, individual counseling, inpatient treatment, intensive outpatient programs, support group meetings like AA or NA, medical detox, substance abuse classes, or parenting classes.

If a parent’s substance abuse is endangering a child, CPS may take custody if there are no other safe options. The goal is for the child to return home after the parent has shown a commitment to recovery and the ability to provide a safe, stable home for the child. If CPS takes your child from your home, there will be a court hearing within 14 days. You will be entitled to a free attorney if you cannot afford one.

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