Addiction and Child Custody Laws in California

Child custody worries everyone, especially when you’re dealing with addiction. What role does drug or alcohol use play in child custody cases? What relevant laws guide custody decisions in the State of California? We review here.

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ARTICLE OVERVIEW: Substance abuse can lead your loss of parental rights. This article will give you insight to California’s governing laws around child custody. We’ll also look at how courts decide on child custody cases if addiction is present. Feel free to leave your questions in the comments section. We try to answer all real-life questions promptly.


Child Centered Policy

California Statutes are codified into 29 California Codes. The Family Code of California and Family Code section 3011 is the key statute in California for determining child custody. This statute has been created to support the best interest of children in the state. So, what are the main ideas behind the laws?

Public policy in the State of California is child-centered. That means that all courts decisions are based on the “Best interest of the child” legal standard, meaning that children’s:

  • Education
  • Health
  • Safety
  • Welfare

…are of paramount importance, and it’s the court’s main concern in custody cases. Things like a child’s age, health, relationship between the parents and are they able to take care of the child, history of domestic violence or substance abuse, and how is the child interacting with its environment, are all taken into consideration by the court.

Trial & Superior Courts

Trial courts handle criminal cases, civil cases, and appeals of misdemeanor cases. These courts handle civil cases (family law, probate, juvenile), among the others. Family cases regard child custody fall under family law, colloquially known as the “family court”.

These cases include:

  • Child custody and visitation cases
  • Child Support
  • Divorce
  • Juvenile Dependency
  • Juvenile Delinquency

California has 58 superior courts, one in each county. Find a complete list with addresses and phone numbers here. Plus, since family law and child custody cases are sensitive, many jurisdictions in California have established Unified Family Courts (UFC) whose focus is on coordinating related family cases and court-referred services.

NOTE HERE: Many of California’s Superior Courts have specialized divisions for different cases, but these divisions are not separate courts, but merely administrative divisions.

All child custody orders are issued by the judges of the Superior Court. If you are not satisfied with a decision a Trial Court has made, you can appeal the decision in an Appellate Court.

2. Appellate Courts

Appellate courts allow for you to appeal a decision and to ask for a second case review. The courts are governed by the Judicial Council of California that coordinates and supervises the work of the state courts in California. The two main types of appellate courts are:

  1. Courts of Appeal. The California Courts of Appeal are divided into six appellate districts, based on geography. See the map for more details.
  2. California Supreme Court. This is the highest court in the state. It reviews the cases decided by the Courts of Appeal.

These courts work to uphold the law in custody and parenting time (visitation) cases. They also support agreements between the parents, ask for a custody order, respond to a request, and change or enforce an order. For more information on custody mediation, see the California State Courts of Appeal website.

In California, parental substance abuse is considered child abuse.


The following laws address certain aspects of child custody, substance abuse, and child protection. This list is not exhaustive, nor meant to provide legal advice. These are a summary of the laws and how they relate to addiction. Please check out the section below for more information on how and when to get a lawyer.

1. Uniform Child Custody Jurisdiction and Enforcement Act

Like many U.S. states, California has adopted the Uniform Child Custody Jurisdiction and Enforcement Act. This Act determines which state has jurisdiction and authority to make decisions in child custody cases. California child custody laws comply with the Act, and has been codified into California law as Sections 3400-3465 of the California Family Code.

2. Family Code Section 3041.5

This section allows the court to order alcohol or drug testing to a parent who seeks custody or parenting time in a custody case with substance use disorder circumstances.

3. California Family Code section 3042

The court must consider a child’s preference and wishes when deciding on child custody rights. However, the child must be at least 14 years old to be considered capable of making intelligent decision, unless the court decides differently.

4. Health & Safety Code § 11379.7

Any person convicted of possession of manufacture of controlled substances in the presence of a child under 16 is considered a felony.

5. Welfare and institutions Code § 300

Any child who has suffered or risks suffering physical harm or illness due to parental or guardian mental illness, disability or substance abuse, may come under protection of the court.

6. Penal Code § 11165.13

Any indication on maternal substance abuse shall lead to an assessment of the mother and child’s needs in accordance with the law.

7. Child Abuse and Neglect Reporting Act [11164 – 11174.3]

The purpose of this Act is to protect children and regulate policies and procedures for reporting child abuse and neglect. Parental substance abuse is considered a type of child abuse, and is defined in this law.

Types of Custody

There are two types of child custody and two associated subtypes in the State of California. These are:

1. Legal Custody.

1.1. Joint legal custody is when both parents share the rights and responsibilities for the child’s development.

1.2. Sole custody is when only one parent has the rights and responsibilities for the child’s development.

2. Physical Custody.

2.1. Joint physical custody is when children live with both parents in certain predetermined periods of time.

2.2. Sole or Primary physical custody is when children live with one parent only.

California Superior Trial Courts can order drug testing under certain circumstances after evaluation of evidence of substance use.

“Proof” of Drug or Alcohol Use

Parental substance abuse is one of the determining factors in custody and visitation rights. The court must provide proof of a parent’s habitual and continual substance abuse. Accusations without evidence will not be enough. The court is obliged to determine the credibility of the testimony and take into consideration the whole context.

The evidence of drug and/or alcohol abuse that California courts consider include:

  • Admitting substance abuse.
  • Medical reports.
  • Third party eye witnesses.
  • Written reports from law enforcement agencies.
  • Written reports from social welfare agencies.

Then, the court can order drug testing under certain circumstances. In most cases, a urine test will be ordered, as a least intrusive testing method. Note that there must be some kind of evidence of drug use before the court decides on ordering a drug test. Once a decision is made, the test must be confidential and used only for the purpose of determination of child custody.

Visitation Rights

Types of visitation rights in California include:

Scheduled visitation, which is a detailed plan about the time the child spend with each parent. transportation responsibilities, holidays, birthdays, and vacations.

Reasonable visitation, where parents plan and implement their own schedule.

Supervised visitation, when a third person is present during parental time.

No visitation, when contact with the parent is not in the best interest of the child.

Before you appear in family court, your visitation rights will first be reviewed by a third party mediator. Mediation, or “child custody recommending counseling”, is mandatory in all custody and parenting time cases before you go in front of a judge.

The goals of mediation are to help you:

  1. Agree on a parenting plan that is in the best interest of your children.
  2. Agree on a parenting plan that lets your children spend time with both parents.
  3. Learn ways to deal with anger or resentment.

Child custody mediation gives you a chance to resolve disagreements about a parenting plan. If you’re able to work out an agreement, the mediator helps define custody and visitation guidelines. If you cannot work out an agreement the mediator can give a written recommendation to the court.

In principle, parents are encouraged to have frequent and continuing contact with their children. Parenting time is how parents share the time with their children.

However, if you’re drinking or using, a judge will probably order that your child only have contact with you when a neutral third person is present during the visitation. This type of third-person visitation arrangement is often called “supervised visitation.”

Most likely, the court order will specify the time and duration of the visits. Sometimes, the court order will also specify who will provide the supervised visitation services and where the visits will take place.

What Happens if I Test Positive?

Substance abuse is consider child abuse in California. If you’ve testing positive for illicit drugs, a parenting plan will be put in place that will help everyone stay safe. In these cases, the parenting plan can include:

  • Supervised visitation.
  • Recommended “safe zones” where you child will be dropped off and picked up.
  • Not seeing the co-parent or other guardian.

It should be noted that keeping parents and children together is of the biggest priority and a parental substance abuse will not automatically exclude you of custody/visitation rights, but the opposite is also true, and a positive drug test will not guarantee a positive outcome.

In most cities and counties in California, there are domestic violence agencies that can provide legal help with custody issues. You can contact the National Domestic Violence Hotline and ask them for domestic violence organizations in your area. For more information, you can also visit the domestic violence safety planning section of this Online Self-Help Center for more information on safety plans for you and your children.

Can Someone Subpoena My Records from Rehab

Yes, your rehab records may be accessed through a court order.

Considered as highly sensitive, medical records can be disclosed in California under the Civil Code §56 by a provider of health care, health care service plan, or contractor ONLY by any the following:

  1. By a court pursuant to an order of that court.
  2. Board, commission, or administrative agency for purposes of adjudication pursuant to its lawful authority.
  3. By a party to a proceeding before a court or administrative agency pursuant to a subpoena, subpoena duces tecum.
  4. By a board, commission, or administrative agency pursuant to an investigative subpoena issued
  5. By an arbitrator or arbitration panel, when arbitration is lawfully requested by either party.
  6. By a search warrant lawfully issued to a governmental law enforcement agency.
  7. By the patient or the patient’s representative pursuant.
  8. By a medical examiner, forensic pathologist, or coroner, when requested in the course of an investigation.
  9. When otherwise specifically required by law.

Further, this federal law protects your confidentiality. The Federal Statute 42 protects the confidentiality of record of the identity, diagnosis, prognosis, or treatment on any patient relation to substance abuse. These records shall be confidential and disclosed only for the purposes authorized by a court.

How to Be Reunited with My Kids?

Sometimes, your kids will be taken from your custody. The juvenile court gets involved in the lives of children when there are concerns that a parent is not able to keep his or her child safe from abuse or neglect. Then, the court starts a juvenile dependency case.

Often, your child may be recommended a new legal guardian. Legal guardianship is a court order that says someone who is not the child’s parent is in charge of taking care of the child. Legal guardians have a lot of the same rights and responsibilities as parents. They can decide where your child lives and goes to school, and they can make decisions about your child’s health care.

Still, the primary aim of all governing bodies involved in the child welfare system is reunification of families.

So, how you can get legal custody back?

How can you prove to the court that you are fit to be a parent?

The Adoption and Safe Families Act (ASFA) gives the parent a limited amount of time to achieve rehabilitation and not succeeding can result in a loss of parental rights. Before you are reunited with your children you must comply with the courts orders and show an evidence of housing, employment and competition of a 30, 60 or 90 days substance abuse rehab program. Parental substance abuse lowers the probability of reunification, and increases the time you children spend in foster homes.

Always remember that the decision the court has once made doesn’t have to be permanent. There is always a way to create a healthy home and become the parent your children deserve. Getting better helps everyone.

What Happens When I Finish Rehab?

After completing rehab, the court will make evaluation and decide whether or not you will be awarded custody. It is important to successfully complete all required levels of substance abuse treatment. Making the most of your stay in a treatment facility, your participation in an aftercare program, and dedication to a sober life increases the chances of regaining custody.

A continued pattern of relapse and inability to adhere to treatment and recovery programs can extend the separation with your child and can lead to losing your parental rights.

Then, it’s possible for you to request for a change of the custody and visitation schedule if you:

  • Show the court that there’s been a change in circumstances.
  • Show the court that there is a significant change for the best of the children to have stable and consistent custody arrangements with their parents.
  • Don’t have to go to mediation before you file any papers.

Moreover, the court may order a drug test to prove your sobriety. Find all file forms, and tips on how to fill them here

However, choose the recovery life for you, not just for your children. If you are clean and sober, not only you will get better in life, you will rebuild trust and strengthen your relationship.

Where to Find Rehab?

There are numerous treatment options in California. You can call us and learn about your treatment options in the state. Our compassionate hotline operators are there to listen and help. Here are some other helpful links the can help you with your search for the right treatment options.

Don’t forget that you can always call us. We’d love to hear from you.

We know addiction. You are not alone!

When to Get Legal Help

Child custody cases involving parental substance abuse are quite complex and sensitive. So, we suggest you consider asking for legal help right away. Choosing the best lawyer can be difficult, but there are variety of sources where you can search.

About the author
Lee Weber is a published author, medical writer, and woman in long-term recovery from addiction. Her latest book, The Definitive Guide to Addiction Interventions is set to reach university bookstores in early 2019.
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