ARTICLE OVERVIEW: This article reviews laws that affect people dealing with addiction, the courts that handle custody, and your individual rights. Please leave your questions in the comments section at the end.
TABLE OF CONTENTS:
- “The Best Interest of the Child” Policy
- Supervising Courts
- Laws
- Types of Custody
- “Proof” of Drug or Alcohol Use
- Visitation Rights
- What Happens If I Test Positive?
- Can Someone Subponea My Records from Rehab
- How to Be Reunited with My Kids?
- What Happens When I Finish Rehab?
- Where to Find Rehab?
- When to Get Legal Help
The “Best Interest of the Child” Policy
Massachusetts courts decisions on child custody are based on the “best interest of the child” policy. A child’s well-being comes first. Judges typically consider the following issues before making a decision about custody:
- How the child is doing in school and the community.
- The age and maturity of the child and their wishes.
- The parent’s history of substance abuse, abandonment, or other forms of abuse.
- The relationship between child and the parents and the other close family members.
- Whether one parent has been the primary caregiver in the past.
This means that decisions for visitation hours and custody award are made with the prime goal of child’s happiness, emotional state, and overall well-being.
Substance use plays a huge role in whether or not you get custody of your child.
What Courts Make Decisions?
The main court that handles family and children matters in Massachusetts is the Probate and Family Court. [1] The Probate and Family Court Department has jurisdiction over family-related and probate matters, such as divorce, paternity, child support, custody, parenting time, adoption, termination of parental rights, and abuse prevention. The Court has 14 divisions and is present in 15 locations throughout the state, with main administration offices in Boston. The address of the main division is:
1 Pemberton Square
Mezzanine
Boston, MA 02108
Phone:(617) 788-6600
TTY: (617) 788-6616
Fax: (617) 788-8995
Additionally, Massachusetts offers several types of specialty courts including:
- Adult and Juvenile Drug Courts
- Homeless Court
- Mental Health Court
- Veterans’ Treatment Court
Finally, the Massachusetts court system has extra specialty court sessions in specific locations. These currently include a Family Drug Court in Franklin County and Family Resolutions Specialty Court (FRSC) in Hampshire County.
If you’re using around your kids, it’s considered child abuse.
Laws
1. The Uniform Child Custody Jurisdiction and Enforcement Act
Every state in the U.S. has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, the UCCJEA. The goal of this law is to minimize or completely eliminate custody conflicts from state to state by allowing courts to recognize and enforce custody orders made in other states. [2]
2. Massachusetts General Law
Massachusetts General Law Part II: REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS, Title III Domestic Relations, Chapter 208 is the main law that governs Divorce, Section 31 Custody of children; shared custody plans.
Session Laws, Acts 2008, Chapter 176 : This is an Act Protecting Children in the Commonwealth. Provides extensive changes to child protection laws in Massachusetts, including renaming the Department of Social Services the Department of Children and Families and creating a powerful new Office of Child Advocate within the governor’s office.
General Laws Ch.119:This act works on the strengthening and encouragement of family life for the care and protection of children. Its purpose is to insure that children of the Commonwealth are protected against harmful effects resulting from the absence, inability, inadequacy, or destructive behavior of parents.
General Laws Ch. 119, § 21:In this act, you will find detailed definitions applicable for Children Laws in Massachusetts.
General Laws Ch. 119, § 51A : This act defines “Mandated Reporting.” A mandated reporter who, in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury shall immediately communicate with the Department of Children and Families orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect. The physical or emotional injuries resulting from:
- Abuse inflicted upon him or her that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse;
- Neglect, including malnutrition; or
- Physical dependence upon an addictive drug at birth.
Types of Custody
Massachusetts has four (4) different types of custody arrangements. These are:
1. Sole legal custody. One parent has the legal right and responsibility to make major decisions about the well-being of the child such as education, medical, care, religion, and emotional development.
2. Shared legal custody. Both parents are equally involved and responsible for major decisions about the child.
3. Sole physical custody. A child lives with one parent, and they spent reasonable parenting time with the other parent. Moreover, in these cases, the court may decide that the parenting time wouldn’t be in the child’s best interest.
4. Shared physical custody. A child lives with each parent for certain period of time, so the child has continuous contact with both parents.
Rehab can help you get your kids back.
What’s “Proof” of Drug or Alcohol Use?
Substance abuse plays a huge role in getting custody of your child. In normal circumstances, the court will not order drug and alcohol testing. However, one of the parents may request the court to order a drug test. In these cases, a petitioner needs to file a motion and offer evidence of the spouse’s substance use disorder. Keep in mind if you make allegations that are not completely solid or don’t have valid evidence, false accusations may backfire.
Some types of evidence that can support claims of a substance use disorder include:
Direct evidence. Direct evidence such as video, picture, social media posts, or text of the person admitted should be printed out. This evidence may be taken into consideration, as long as their legitimacy can be proven. But, pictures doesn’t always carry the weight for positive outcome because if someone is surrounded by empty bottles, it doesn’t mean that they consumed them all.
Drug test. This is the best evidence to prove substance abuse. The court may order drug testing for both parents even though only one of them is under suspicion for using substances. The court may order drug test only in the least intrusive method, urine drug that are done through the probation department of the Massachusetts Probate and Family Court system. The drug tests are random and people can be tested once every 10 day or so.
Recorded history of substance abuse. This is the most relevant evidence that proves substance abuse since every substance-related criminal charge is documented by the police. Relevant documents may include DUI charges, drug possession, etc. Recorded documents constitutes a ‘preponderance of the evidence’.
Witness’ testimony. If you have witnessed how the spouse is using substances while the children are around, you can enter your testimony into evidence. If you have a third party as a witness, in a court this is technically known as ‘hearsay’, and therefore it is not likely to be admissible unless the third party is subpoenaed.
Courts order drug tests for both parties in MA.
Visitation Rights
Parents who have been using drugs or alcohol often are restricted in their visitation rights to see their own children. While it may not feel fair at the moment, you’ll need to respect that court decisions are truly in the best interest of your child.
In sum, there are four (4) type of visitation related to parents and children in cases of substance use.
1. Reasonable visitation. If the communication between parents is good, they usually don’t need a fixed schedule, they will leave visitation hours flexible and arrange visits themselves.
2. Visitation schedule. If the communication between parents is not good, a court ordered detailed visitation schedule is often the best choice. This way, parents are not in contact with each other, they keep up with the schedule.
3. Supervised visitation. In some cases where the court declared that it may not be safe for the child to be left alone with a parent during visitation hours, supervised visitation is arranged. This means that a third party supervisor stays with the visiting parent during these hours, and makes sure that the child is safe. Moreover, the supervisor has the right to stop the visit if they have the reason to suspect that the child is not safe.
These types of visits can be appropriate when the parent still has a substance abuse problem, or another issue that suggests they could put the child in danger. Moreover, in Massachusetts there are supervised visitation centers that offer supervised visitation.
4. No visitation. There are rare cases where there is no parental visitation allowed for the child’s sake. If the parent has abused the child, it may be traumatizing for the child to see the parent, even in a supervised visit arrangement. These types of visitation are made in the child’s best interest to protect them.
It’s also worth noting here that both parents can make their own visitation hours and draft an agreement about custody and parenting time, but a judge has the last word: s/he will review any pre-existing agreement to make the final decision whether the schedule is in the best interest of the child/children.
Call us to learn about treatment. Your family needs you.
What Happens if I Drug Test Positive?
It depends.
After all, it can look worse if you are positive for illegal drugs such as heroin or cocaine than if you test positive for a small amount of alcohol.
A positive drug test result does not automatically mean a negative outcome in a custody case’s final outcome, but it may weigh in favor of the other parent.
Further, the court may order the parent who uses a substance to abstain from possession or consumption of alcohol or other substances during the visitation hours and for 24 hours preceding the visitation. Additionally, a judge may order a temporary decision for any visitation time to be supervised until the case is closed.
Also, a parent may be ordered to enroll into addiction treatment program. If they successfully complete the treatment, they will show the court that they are willing to create a better environment for the child.
Often times, you may be ordered to take a second drug test after 60 or 90 days. If the test comes clean, it can show that you’re making changes in your life. But, if the drug test is still positive, the parent may have problems of gaining custody or having more visitation rights with their child.
Don’t wait until it’s too late. Call us today.
Can Someone Subpoena My Records from Rehab?
Massachusetts Civil Procedure Rule 45 allows parties in civil lawsuits to subpoena records from non-parties. [3]
However, the Federal Statute 42, Confidentiality of Record states that the confidentiality of records of the identity, diagnosis, prognosis, or treatment of any patient relating to substance abuse education, prevention, training, treatment, rehab, or research which is conducted, regulated, or directly, or indirectly assisted by any department or agency of the U.S. shall be confidential and be disclosed only for the purposes and under the circumstances authorized by a court order.
This means that the records may be disclosed by court’s orders if the patient is a part of criminal case or family law case only.
The general rule is that medical records should never be automatically disclosed to a subpoena without first confirming if there is sufficient authority to release the protected health information under both Massachusetts law and the Health Insurance Portability and Accountability Act (HIPAA). Only licensed hospitals and clinics in Massachusetts may produce medical records to a subpoena only if the patient is a named party in the case.
Since HIPAA provides a minimum level of protection for the disclosure and protection, Massachusetts has several statutes that provide additional protection for certain health information:
- General Laws Chapter 112, section 135 B protects the communications and records between patient and social worker, and the records may only be disclosed under certain circumstances. [4]
- General Laws Chapter 233, section 20 B protects the communications and records between patient and psychotherapist, and the records may only be disclosed under certain circumstances. [5]
- General Law Chapter 111, section 70 E protects patients’ and residents’ rights and confidentiality. [6]
Your kids need you. Be there for them.
How to Be Reunified with my Kids?
Simply, complete court ordered treatment.
According to this study, children of people who successfully completed family drug treatment court suggestions were more likely to be reunified and less likely to exit via adoption or guardianship/custody relative to youth whose parents were referred to a program but who did not enroll or enrolled but did not complete it.
Your compliance with court orders and suggestions can help support access to your children. It can even lead to reunification. The best way forward is to WANT TO CHANGE. If you’re going through treatment just to go through the motions…what’s different?
The idea is that you need to show proof of healthy living and parenting skills to both your kid(s) and the courts. This is a gap that many of us have after using drugs or alcohol for so long. It comes with the territory.
Take hope. Breaking the cycles of chemical dependency is possible, but it requires work! You’ll need to have a solid relapse prevention plan and be committed to addiction recovery.
Additionally, you will have to work with a psychotherapist, addiction counselor, or social worker to:
- Be able to use problem solving and decision making skills.
- Develop better communication skills.
- Develop coping skills to deal with stressful situations.
- Learn how to appropriately express your feelings.
The end goal is that you want to be a better, stronger person for your child(ren). It’s your job to providing a safe, nurturing place for your kids. But building trust comes with consistency.
As your self-awareness and self-worth increases, you can start to take control of your life again.
Rehab can change your life. Call us to enroll.
What Happens When I Finish Rehab?
Finishing a rehab program is just a little step from a complete recovery. Two things are important once you have completed rehab. The first important thing is that you always follow court’s orders, while the second one is to enroll into aftercare program. However, a custody or parenting time arrangement in Massachusetts can be changed by the court if you can show:
- A significant change in circumstances since the judgment or temporary order was made.
- That the best interest of the children aren’t being met by the current agreement.
Aftercare is usually essential for lasting recovery because it can help you deal with protracted withdrawal symptoms, prevent relapse, and transition back into everyday life. Most aftercare services include:
- Counseling and support group meetings
- Family therapy
- Follow-up medical care
- Sober living communities
Enrolling into aftercare program once you completed rehab will show the judge that you are eager to work on your recovery, and the chances of getting your children back will increase greatly. Keep in mind that you need to follow the law, and always consult with your lawyer.
The court will want to know that you are clean and sober, and you may have to take a drug test as a proof of your sobriety. For start this may increase your visitation hours. Then, the court may request an evaluation by a professional child custody evaluator who will examine all the variables of your case starting from the relationship with your child to the home environment. Moreover, they will do the same with the current custodian of your children.
Then, they will report everything to the court.
When forms are filed, and the court approves the custody modification, you will receive a copy of the decision within 30 days.
Find all forms, and where to file them here.
Change is possible, if you work for it.
Where to Find Rehab?
The options for finding a rehab are enormous, even though they may look like an dead end before you start with your search. The first thing you need to do is to admit that you have a problem, and start working on the solution. Then, take a look into these contacts:
- SAMHSA’s National Hotline 1-800-622-HELP (4357)
- Massachusetts Substance Use Helpline 800-327-5050
- Massachusetts Substance Use Treatment Locator
- CALL OUR HOTLINE
Helping yourself will help your children, too.
Don’t wait reach out for help! It might be too late…
Call us right now.
When to Get Legal Help
Finding the right lawyer for you custody case may be hard, but there are so many resources to read before choosing the best one. Moreover, if you cannot afford to hire a lawyer, you may still have access to legal help through your local legal services which provide pro-bono help or low cost services.
There are numerous legal aid organizations in Massachusetts, and the best places to start are the Massachusetts Legal Services and Mass. Legal Assistance. [7] If you don’t qualify for free legal help, search for a lawyer via the Massachusetts Board of Bar Overseers.
Reference Sources: [1] Massachusetts.GOV: Probate and Family Court
[2] NCJRS: The Uniform Child Custody Jurisdiction and Enforcement Act
[3] Massachusetts.GOV:Civil Procedure Rule 45 Subponea
[4] Massachusetts Legislature
[5] Massachusetts Legislature
[6] Massachusetts Legislature
[7] Massachusetts State Find Legal Aid
Mass.Gov: Legal Assistance
Massachusetts General Law Title XVI
Child Welfare: Drug Exposed Children
Children Welfare: Reunification
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