How does a parties drug addiction impact decisions in a parties divorce or parenting case?

Impact on Parenting cases

One of the most difficult decisions facing judges is the extent to which a parent’s drug or alcohol use impacts that parent’s ability to provide a safe and loving environment for children. Accordingly, there is no easy answer to this question.

The usual starting point for most judges is the basic issue of safety. Is a parent driving a child while under the influence of alcohol or mood altering drugs [even if a drug is prescribed]? The age of the child is a factor in deciding whether drug use threatens child safety. For example, most fifteen year olds know how to get out of a burning home, whereas that cannot be said for a 2 year old.

Generally a parent’s use of drugs or alcohol away from children is not a significant factor. Also parents are usually afforded some leeway in the consumption of legal drugs such as alcohol, and more recently marijuana, in Colorado. Recent case law implies that a judge must make specific findings regarding how a parent’s drug use negatively impacts a child before the court can forbid a parent to use drugs or alcohol. However, regular use of many illegal street drugs such as cocaine, methamphetamine or heroin will almost certainly be seen as a serious drug problem. Also regular intoxication or regular use of any drug to the point that it interferes with a parents functioning may be a significant factor in deciding how much time a child should spend with a parent.

It is not uncommon for courts to restrict parent’s access to children to a supervised setting when the judge is convinced that the use of drugs or alcohol has become harmful to a child.

Impact on maintenance/alimony/child support

Colorado law is based on the “no-fault” standard. For example, the Colorado court of appeals has ruled that a parent’s child support may be reduced, even when a parent loses his or her job due to a failed drug test.

The rationale is that the court must ascertain the earning potential of a party at the time they come before the court. The “no-fault” doctrine prohibits a judge from punishing parties, even for illegal drug use that costs a job. However, a judge may reasonably expect someone with a child support or maintenance [alimony] obligation to make their best efforts to obtain or maintain employment, and could find that a party’s refusal to seek drug treatment in order to maintain employment is a voluntary choice.

Also in the division of marital property, a court might decide that one spouse’s expenditure of extravagant sums on illegal substances or alcohol might be a factor in dividing marital property under the doctrine of “marital waste”.

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