Child custody, in general, is the set of legal rights and responsibilities that parents have over the care, control, and upbringing of their child. There are numerous different ways custody rights can be shared.
Regardless of whether an individual seeks custody or visitation rights, there are two main ways that a parent involved in a separation or divorce proceeding can begin the process, including:
- By agreement: The preferred method is by agreement. The parents can discuss child custody and visitation arrangements without the involvement of lawyers or s court;
- If this is possible, then the parents should then draft an agreement in writing that states the conditions of custody and a basic visitation schedule; or
- By court order: In cases where the parents cannot come to an agreement or when the well-being of the child is in jeopardy because of one or both of the parties’ behavior, then a court will be required to intervene and make decisions about the arrangements;
- When the court is tasked with such a decision, it usually means that the parents will be given an opportunity to present their side of the situation at a hearing.
Both methods require approval from a court for the final child custody agreement or visitation schedule. There are numerous factors that a court examines when making custody determinations, including the stability of each parent, which may be affected by issues requiring rehab.
If a parent has an alcohol or drug issue, they can attend a voluntary program and use that as evidence in their favor of stability if they have had previous issues or convictions. When an individual goes to inpatient rehab, they may be concerned about custody of their children while they are in treatment, especially if they are a single parent.
In reality, completing a treatment program often improves the individual’s parenting abilities and will reduce the likelihood that the children will have to be removed from their parent. There are also situations where an individual will be ordered by a court to complete a rehab program, or a diversionary program.
A diversionary program may be ordered according to the rehabilitative needs of the defendant. For example, diversionary programs may involve:
- Substance abuse treatment and random drug testing;
- Payment of restitution to victims;
- Mandatory community service;
- Letters of apologies to victims;
- Avoiding settings or situations that may lead the individual to commit another crime;
- Attending mandatory educational courses;
- Restrictions on travel or prohibitions on entering certain locations, such as a school zone; and
- Payment of community fines or criminal fees.
Diversion programs may be available for:
- Juvenile crimes or age-based criminal offenses;
- Petty misdemeanor crimes, for example, shoplifting or graffiti;
- Non-violent felonies;
- Crimes involving drugs or alcohol;
- Certain DUI charges, referred to as DUI Diversion;
- Minor traffic-related offenses;
- Child abuse or neglect; and
- Other crimes such as falsifying documents.
These programs are similar to probation because the defendant is required to complete the program and all of its requirements. Once they do so, the original charges against them will be dismissed and there will be no record of their conviction.
This can be helpful in cases where a parent with a criminal past is seeking custody to show they have turned their life around. If an individual’s child is placed in foster care as a result of their addiction issues, once they have completed a program, they may obtain custody of their child again.
Can Going to Rehab Affect Child Custody?
Yes, if an individual goes to rehab, it may affect child custody. In most family law cases, courts will make decisions concerning the child involved based on the child’s best interest standard.
This standard is used when finalizing child custody and visitation agreements and takes precedence over most state child custody laws. The factors that the court considers when applying the standard, however, may vary by state.
Under this standard, the individual who is taking custody of a child has to be able to provide a stable home environment and ensure the safety and well-being of the child. To determine whether or not a parent qualifies for custody under this standard, a court will consider many factors, including, but not limited to:
- The ability of the parent to care for their child;
- The relationship the parent has with their child; and
- Which parent’s home would be better suited for the child’s needs or adjustment.
If a parent is having substance abuse issues that are affecting their ability to care for their child and provide a stable home environment, it may create a situation where either the other parent can obtain custody or the child will be taken from the parent and placed into foster care.
What Are the Types of Custody Arrangements?
There are different types of custody arrangements including:
- Legal;
- Physical;
- Sole;
- Joint; and
- Bird’s nest.
Legal custody
Legal custody is the right for a parent to make important decisions regarding how the child will be raised, such as medical care, education, and their religion. A parent may be awarded joint or sole legal custody over their child, although joint is preferred if the parents are willing to cooperate.
Physical custody
Physical custody is the right to have a child physically reside with a parent. Typically, this is the location that will be considered the child’s home because it is where they will spend most of their time.
It is important to note that physical custody may be awarded to both parents where the child will either equally split their living arrangements between both parents’ homes or the parents will design a schedule that will allot alternating periods of time in which the child will live with them, such as spending summers at one parent’s house and living with their other parent during the school year.
Sole custody
Sole custody is when only one of the parents is granted both legal and physical custody of a child. This means that one parent will be able to make legal decisions on behalf of the child and that the child will physically reside with them.
It is important to note that, if sole custody is awarded, a non-custodial parent will not be granted any visitation rights.
Joint custody
Joint custody provides both parents with an equal share of responsibility over certain aspects of their child’s life, such as the amount of time a child spends with each of them and the right to make important decisions regarding how the child is raised. A parent may be awarded joint legal custody, joint physical custody, or both.
Bird’s nest custody
Bird’s nest custody is a rare situation when a child resides in the same residence and the parents take turns living with them in the home. This arrangement can be easier for a child, as they will not have to continuously split the time between two homes.
There are some situations in which one parent has custody and the other has supervised visitation.
Supervised visitation is visitation between a child and a parent that is conducted at a neutral location. Circumstances that may require supervised visitation include:
- The parent is struggling with substance issues;
- The parent has been abusive;
- The parent has engaged in sexual abuse;
- There is a history of domestic abuse; or
- The parent is suffering from mental issues.
Supervised visits can create a safe environment for the child and the parent to interact so that families can still have access to each other.
What Are Legal Considerations Related to Rehab and Custody?
If a parent attends rehab voluntarily or by court order, the other parent may desire to modify the custody or visitation order. Life changes that may qualify to modify an existing order include:
- When a parent’s behavior puts the child’s life at risk, such as abusing or selling drugs;
- If one parent becomes incapacitated, deceased, or another issue results in them no longer being able to care for their child;
- The parent loses their job, remarries, or relocates; or
- They complete a court-ordered program that reinstates certain parental rights.
If a parent seeks to modify an existing child custody order, they have to file for modification in family court. If an individual has lost custody of their child and would like to get custody back, they can also petition the court for a custody change.
The individual will need to be prepared to show they completed the rehab and engaged in all recommended levels of therapy. They will also need to demonstrate that they followed all recommendations of their rehab program upon discharge.
How Can I Support Rehabilitating Parents?
It is important for a rehabilitating parent to have a support system while they are working on improving their lives, whether that is a family member, a therapy group, or a friend. The rehabilitating parent can also seek professional help to ensure they continue improving after they have completed their program.
What Happens When Rehab is Successful?
If an individual successfully completes their rehabilitation program, it may result in a criminal record being erased, if the rehab was court-ordered or it may allow the individual to obtain custody of their child again. Rehab is an important step an individual can take to ensure their future and their child’s future will be a positive one.
Should I Contact an Attorney?
If you have any issues, questions, or concerns related to child custody and rehab, you should consult with a child custody lawyer. Your lawyer can advise you of what can occur if you do or do not attend rehab, how it can affect your custody case, and whether it can help you regain custody if you have lost it.
Child custody issues are extremely important for all parties involved, especially the child. They are the most important party in any custody case.
