Dealing with the “Opioid Crisis” In Child Custody Proceedings

In child custody proceedings, Indiana trial court judges award or modify custody by considering all¹ of the evidence in order to determine a custody arrangement in the child’s best interests. There are several statutory considerations for the court to weigh, including the physical and mental health of the parents, as well as any other facts or circumstances that may factor into a child’s best interests as it relates to custody.² For years, “soft” drug use, such as smoking marijuana, has been considered in awarding or modifying custody in Indiana.³ Further, serious drug addiction/abuse issues sometimes came before trial courts and were relatively easily handled where the impairment of the parent put the child in harm’s way—an award or modification of custody to the other parent.

So, drug use and/or abuse is not new to the Indiana courts, judiciary, or attorneys. However, in the last several years, “hardcore” illicit drug use, once limited to “crack babies” in the big inner-cities, became mainstream legal issues facing Indiana domestic courts. The first was the illicit manufacture and use of methamphetamines. Limits on pseudoephedrine purchases substantially pushed back this trend. Now a new, profound threat exists that knows no socio-economic boundaries—the opioid crises—and is the subject of national attention and problematic in every state. Parents that are addicted to opioids may be so impaired he or she presents an immediate, on-going serious risk to a child’s physical or mental health well beyond the general risk associated with somewhat common recreational marijuana use. This blog covers tools available to litigants and judges to identify and address the opioid drug⁴ use and abuse in child custody litigation to protect the child and meet his or her best interests.

For the most part, a parent seeking to be awarded or modify custody due to another parent’s opioid addiction and abuse must recognize and identify the problem and bring it to the attention of the court by filing a child custody (modification) proceeding. In extreme cases, an arrest for illegal opioid-related activity or DCS’ investigation may also provide some protection to the children and assist the non-addicted parent and start de facto custody (or modification) proceedings. This brings the question that is a central point of this blog post, “How does a parent who suspects his or her child is in harms’ way due to the other’s opioid abuse obtain this evidence?” Fortunately, once the parent brings this issue before the court in a custody proceeding, the rules of trial procedure and trial court’s inherent authority provide a vast array of tools to gather evidence for the case to present to the court, and thereby, protect children from a parent’s impairment by drug abuse.

For example, where opioid addiction leads to a divorce filing, there may be a police arrest and/or conviction records or medical records from rehabilitation that may be used to establish the abuse and make for a custody award (or modification where it has already been established in a divorce or paternity case). These are obtained by the discovery rules⁵ which allow a party to obtain records from third parties, take depositions, or ask questions of the other parent. There are technical rules that must be followed to obtain this information as well as have it prepared in a format to be admissible at trial. In addition, there are confidentiality rules that apply as well so the impaired parent’s medical records are not made public.

In practice, a parent who knows or suspects the other parent is abusing opioids works with his or her counsel to explore how the parent is obtaining and abusing the drug to determine what of such tools or mechanisms to deploy to obtain the necessary evidence, as there is way to obtain most of this information in child custody litigation. For instance, and as another example, a parent may hire a private investigator to follow the parent to obtain video evidence of the purchase of drugs or obtain other background information relevant to the issue. This is how the evidence of drug use and abuse is obtained to present to the court to factually establish why the non-addicted parent should have custody awarded to him/her or modified in the child’s best interests. Lastly, a child custody evaluation may be used to address addiction and the total issues within the family dynamic to make recommendations to the court as to what is in the children’s best interests, accounting for the addiction issues confronting the family.

During the process of gathering this evidence, but before the custody trial, there are several legal tools a litigant may use to protect the children from harm if the other parent is using and abusing drugs. One of the most common is for a party to seek, and a court to order no drug abuse, which may be monitored as to compliance by court-ordered drug screens. Depending on the nature and circumstances of what is alleged, a court may suspend parenting time or “temporarily” modify custody to protect the children while the case is being worked up for trial on the request for custody or a modification of custody. Thus, protecting the children during the litigation is also a consideration to work with your counsel, if you are enmeshed in a protracted child custody litigation. Ultimately, the bottom line is a trial court judge has the discretion to protect the children and meet their best interests so long as they are minors and subject to its jurisdiction while assisting, as necessary, the attorneys with gathering the necessary evidence for the coming custody trial.

Ultimately, after the presentation of evidence a court may award or modify custody to a parent if the other parent is drug addicted and it is in the child’s best interests. Further, the court may order supervised visits for the parent who is suffering with addiction issues, as well as drug testing. There are numerous such legal remedies that can be requested, such as drug counseling, and can be ordered by the court in deciding custody proceedings. The take away from this blog is the Indiana legal system can handle the opioid crises and effectively respond to the allegation, provide for obtaining the necessary information to decide the issue, as well as provide mechanisms for the addicted parent to have a safe relationship with the children.

Ciyou & Dixon, P.C. advocates handle domestic cases of all types throughout the state. This blog is written for general educational purposes. It is not legal advice or intended to be relied upon in specific cases. It is an advertisement.

1. This is directly relevant to addiction.
2. Indiana Code 31-17-2-8.
3. Owensby v. Lepper, 666 N.E.2d 1251 (Ind.Ct.App. 1996) (decision to award father custody was supported by the trial court’s findings that mother used marijuana during the marriage).
4. Heroine is also at epidemic proportions, as it is often sought by those who are addicted to opioids who cannot obtain these prescriptions drugs.
5. Indiana Rules of Trial Procedure 26 through 37.