When parents decide to bring an end to their relationships together or to their marriage in divorce, there are several complicated concerns that they’ll need to think about. Just one of those issues, involves how parenting time and custody should be handled. When a court needs to decide the issues the court will look at best interests of the children. Sometimes, parents can simply come to terms about child custody and parenting times on their own, through the process of negotiations through their child custody lawyers, mediation, or collaborative law. However, as a family law attorney, I’ve also seen many instances wherein parents have needed to turn to the help of the court to determine how a child’s care should be divided between spouses.
One common issue that can cause complications in deciding how a child’s custody and parenting time should be managed, is the presence of drugs, alcohol, or issues with sobriety in the lifestyles of one of the parents involved in the divorce. If a parent is known to have issues with sobriety, then it may be the court struggles to determine whether exposure to that parent is in the best interests of the child. Sometimes, visitation may be limited to “supervised” visitation, depending on whether or not the court believes that unsupervised visitation might harm the child in some way. But also getting sober can be a significant positive to allow for a custody and parenting time order to be revisited.
Serving a Child’s Best Interests
Though some parties argue that exposure to a parent who has had past problems with sobriety is never within the best interests of a child, most courts simply don’t agree with that idea when the parent gets back on the right track. Indeed, many courts believe that the best thing for any child, is to develop a relationship with both parents. In a case called Spoor v. Carney, 149 A.D.3D 1209 decided by the Appellate Division in 2017 for instance, a trial was held to determine whether the father’s history with substance abuse should prevent him from having unsupervised visits with his child. However, the court found that “the best interests of the child lie with healthy, meaningful relationships with both parents” and given that the father completed treatment and exhibited a dedication to sobriety that the father should have unsupervised visitation,
Of course, as I frequently note when it comes to advising my clients about cases of sobriety and child custody and visitation or parenting time, the circumstances of any case can often dictate the orders given by the court. While in most situations, the court would prefer to give the child involved access to relationships with both parents, they must weigh the psychological benefits of those relationships against the potential damage that could be caused by an unstable role model.
Changes in Circumstances and Child Custody
As a child custody lawyer, it’s my duty to act on the behalf of my client and represent them to the best of my ability in the courts of New York and Long Island. In some cases, even when a parent is refused custody or parenting time as a result of sobriety, alcohol, or drug issues to begin with, this doesn’t necessarily mean that they cannot petition the courts again at a later stage. Indeed, the New York Courts do not like to change custody and parenting time orders, unless there has been a substantial change in circumstances since the last order was given, then the courts can revisit the custody and parenting time order.
For instance, in the Matter of Ruiz v. Travis, 84 AD3d 1242 in 2011 the Appellate Division had to decide a case where the mother petitioned the court for a change of custody (where a grandparent initially was awarded custody), claiming that a change in circumstances that showed she had been able to maintain sobriety for a prolonged period of time. The mother in the case had also been able to obtain full-time employment, which meant that she no longer relinquished her rights as a parent due to aspects that made her “unfit” to care for the child. Previously, the court had given custody to the grandparent of the child, because they believed the mother to be unfit, and therefore suggested that she had lost her superior right to custody. While the decision was that extraordinary circumstances existed to justify the initial custody award to a grandparent, however, the court ruled that the case can be revisited because or her initial showing of a possible significant change in circumstances.
In a 2006 Appellate Division case of Matter of Grassi v. Grassi, 28 AD3d 482 the court dismissed the mother’s petition for supervised vision (where she previously had no visitation) after she was unable to show a substantial change in circumstances, but they also erred when they stated in the order what the mother should have to do to change the order in the future. The court had stated that the mother had to maintain sobriety for a significant period, go to therapy sessions, and comply with taking prescribed medications. However, the appellate court determined that the previous judge had no authority to compel a parent to undergo therapy as a condition to allow him or her to apply for visitation or custody at a later stage. While these might be the very things that she needs to do to show a substantial change of circumstances, the court was ruling that it was not proper to order what the definition of a change of circumstances might be.
Understanding Child Custody and Visitation with Sobriety
Ultimately, at as a child custody attorney, I’m used to dealing with cases that involve a number of complicated circumstances. In some cases, those circumstances link back to issues with drugs and alcohol that must be addressed when it comes to making decisions for the future of a child within an ending relationship. However, it’s important to note that a problem with sobriety doesn’t automatically mean that a, parent should not have any custody or visitation rights.
As in the 2011 Appellate Division case of Ferguson v. Skelly, 80 AD3d 903 where the father’s children were living in non-parental custody with their grandparents, the court found that although the father had previously had a history of drugs and alcohol abuse, the fact that he had been able to get sober, coupled with other facts within the case, meant that he should once again have access to the superior claim of custody, over a non-parent for his child. The New York case law dictates that a biological parent always has claim of custody over his or her child which should be seen as superior to all others, in absence of the surrender of their custody due to extraordinary circumstances.
In the case of Nephew vs Nephew, the father’s sobriety dictated that extraordinary circumstances were no longer present to suggest that the grandparents should continue to raise the children. Instead, the court suggested that a parent deserves the right to raise their own child, and getting sober can be seen as a substantial change of circumstances significant enough to modify parenting time and custody in the best interests of the child.
To find out more about child custody, divorce and family law, please contact me, Mr. Darren Shapiro at your earliest convenience. You can contact me via our online form, or over the phone on 516-333-6555.