ARTICLE OVERVIEW: Parenting and drug use never go together. In Texas, family laws consider drug use a type of “child abuse”. What can you do if you have an addiction problem? A review of Texas child custody laws here.
TABLE OF CONTENTS:
- “The Best Interest of the Child” Policy
- Supervising Courts
- Types of Custody
- “Proof” of Drug or Alcohol Use
- Visitation Rights
- What Happens If I Test Positive?
- Can Someone Subpoena 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
Under Texas Family Code § 153.002, all Texas courts are guided by the best interests of the child principle when deciding child custody and visitation orders.  That means that Texas courts aim to make an order that best serves the physical, mental, and emotional needs of a child. But how do judges make decisions about child custody?
The decision on where to place a child for their best interest takes into account many variables. Some factors used to determine rulings on child custody cases include, but are not limited to:
A child’s preference when s/he is at least 10 years old.
A history of abusive or assaultive behavior by the child’s family.
Each parent’s future plans for the child.
Parental history of substance abuse.
The ability of each parent to care for the child.
The child’s age and physical and mental vulnerabilities.
The environment and stability of each parent’s home.
The parents’ plan for caring for the child.
The physical, emotional, and mental needs of the child.
Also, when deciding parenting plans, courts follow Texas public policy. The goal is to provide a safe, stable and nonviolent environment. But the state also wants to keep both parents in the life of the child. Where possible, courts want to encourage parents to share rights and responsibilities of raising the child. Another thing worth mentioning is that Texas courts will not consider the marital status or the sex of the parents when deciding parenting plans.
In Texas, there are hundreds of courts that operate in the state. Each has a different jurisdiction. Jurisdiction is based on location, topic, and offense severity. Some courts overlap each other, making the whole system complex and confusing.
At the highest level is the Texas Supreme Court which handles civil matters. Then, the Texas Court of Criminal Appeals handles criminal matters. On the next level are the 14 Courts of Appeal. They, too, have appellate jurisdiction.
The major trial courts in Texas are called “district courts”. They are responsible for civil and criminal cases. Some district courts specialize in a particular type of case, such as juvenile or family law. But there are also county courts, statutory probate courts, justice of the peace courts, and municipal courts. While these have limited jurisdiction, any one of these courts may be involved in a child custody case. 
Family law matters, including divorces and child custody cases are generally handled by the district courts. In most counties, a divorce case is filed through the District Clerk’s office. However, there are also child support specialty courts, and specialty child protection courts in Texas.  Moreover, the Office of the Attorney General is the official child support enforcement agency for Texas. It provides services in establishing and enforcing child support. 
All Texas child custody laws comply with the Uniform Child Custody Act, whose aim is to minimize custody disputes that involve more than one state.  The Family Code and Health & Safety Code are the two main Texas codes for child custody and drug engendered children, respectively. What other laws exist in Texas that outline child custody guidelines?
We’ve gathered a list of the most important laws and chapters of those laws concerning child custody in Texas. It should be noted that this list is not extensive and is not intended to provide legal advice. For detailed explanation on any legal matter, you should consult an attorney.
Family Code § 263.307(b) This section list the factors that should be considered in determining whether the child’s parents are willing and able to provide the child with a safe environment. 
Family Code § 263.307(a), (c) This section provides guidelines that should be considered by the court in determining whether to adopt the permanency plan submitted by the Texas Department of Family and Protective Services. 
Family Code § 261.001 This Chapter defines investigation of report of child abuse or neglect. It also defines the terms “abuse” and “born addicted to alcohol or a controlled substance”. 
Health & Safety Code § 468.102 A chapter that regulates how The Department of Family and Protective Services should protect a drug-endangered child “exposed to methamphetamine or to chemicals and other hazardous materials used in the illicit manufacture of methamphetamine.” 
Health & Safety Code § 468.103 A chapter that defines how the Department of Public Safety of the State of Texas and each local law enforcement agency shall report on discovering the presence of a child in a location where methamphetamine is manufactured. 
Types of Custody
In Texas, laws refer to child custody as “conservatorship”. Conservatorship outlines the rights and duties parents have towards children. Conservatorship includes important decisions like education or medical treatment, among many other things. The parent with court ordered custody is called a “conservator”. There are two types of conservatorship in Texas:
Sole Managing Conservatorship where only one parent has the right to make all the decisions for the child.
Joint Managing Conservatorship where both parents make decisions together.
Texas law encourages joint custody whenever possible. It is considered that it is in the best interest of the child to have both parents live near one another and make decisions together. 
“Proof” of Drug or Alcohol Use
Using a controlled substance that impairs a caregiver’s ability to adequately care for a child is considered “child abuse” or “neglect” in Texas. In child custody cases, parents may file a motion seeking to have the other parent tested for drugs. However, the court will need some proof that a drug test is needed. The proof that the court can take into consideration includes:
- Criminal records
- Medical reports
- Records from social welfare agencies
- Third party eye witnesses
The court is not obliged to grant the motion if there is not enough evidence provided. But, most courts will grant a motion for drug testing, usually a urine drug test, because that is in the best interest of the child. If the parent suspected of drug or alcohol use wants to oppose this, s/he needs to file counter motion and lists reasons why drug testing is not necessary. Also, if the court suspects one or both parents are using drugs, it can order a drug test as part of its child custody evaluation.
Texas does not use the term “visitation” ; instead Texas law outlines the practice of “possession and access”. Possession and access refers to physical custody of children and when a parent can visit the children. Usually, the child will live with one parent while the other will have visitation rights. How is possession and access arranged in Texas?
If you and the other parent agree, you can create a schedule or an informal parenting plan. If you can’t agree, the court will develop a plan based on the best interest of the child. The visitation plan needs to be fair. Both parents should agree to it. The court’s possession order will indicate when each parent has the right to be with the child. A typical visitation schedule might include alternate weekends, alternate holidays, and vacation time.
There are several types of possession orders in Texas. We list the most common four types of possession and access setups here.
- Standard Possession Order. This type of order designates who gets the kids and on what weekends. The parent with visitation rights can visit the child on the first Friday of the month, followed by the third and fifth Fridays of the same month. Access usually ends on the Sunday of the same week at 6:00 p.m. Every Thursday evening, the parent can visit the child between 6:00 p.m. and 8:00 p.m.
- Modified Possession Orders. If there’s been a change in circumstances, a parent may want to pursue a modification of the original possession order. However, there are certain elements that must be met to modify a standard possession order. These modifications will be considered on a case-by-case basis.
- Possession Orders for a Child Under 3. If a child is under three, parents may still agree to use the Standard Possession Order. Or they may agree to use a different possession schedule. If they are unable to agree on a schedule, the judge will make an order based on all relevant factors, like those listed in Texas Family Code Section 153.254. 
- Supervised Possession Orders. When a parent is supervised by a neutral third party, the other parent or designated professionals must be present when s/he is visiting the child. In cases of severe parental alienation, substance abuse disorder, mental or physical abuse, neglect or mental illness the court may order limited or supervised visitation.
Whatever your current situation it is important to remember that custody and visitation are never considered “final”. As situations change, you can come back to court to request changes. So, if you’re struggling with addiction, just know that your access to your kids may be limited now…but that can change. The idea is that as you show signs of healthier living, judges and courts can adapt new possession orders.
What Happens If I Test Positive?
If you are actively using drugs or alcohol and you fail a court ordered drug test, the court takes the drug test very seriously. In fact, it will be a major factor in influencing the court’s decision on visitation and custody, especially if you have a young child or a child with special needs. You may lose all visitation rights or you may get only supervised visitation.
Repeated positive drug or alcohol tests may end in termination of visitation rights in Texas.
The Texas legal system prioritizes the child’s best interest. Judges will be very cautious when granting custody to a parent who uses drugs. That is because substance abuse:
- Exposes the child to illegal drugs.
- Increases the risk of neglect.
- Indicates an unhealthy environment.
In these cases, a parent with and addiction problem may be referred to rehab, counseling, or parent classes. Have in mind that a positive drug test doesn’t automatically mean losing your parental rights. Your willingness to change and work towards that goal will make all the difference.
Can Someone Subpoena My Records from Rehab
In principle, your medical and health records are private. The federal Health Insurance Portability and Accountability law and the Texas Medical Records Privacy Act serve to help you protect your personal health information.
However, Texas courts have held that the privilege to privacy in medical records is not absolute in custody cases. In cases of neglect, abuse or domestic violence the court may order disclosure of rehab records for the purposes of the custody case only. Since parental substance abuse is considered child abuse in Texas, you should be aware that your medical records may be disclosed and used against you.
What laws protect your privacy in the Lone Star State?
HIPAA is a federal law designed to provide privacy standards to protect patients’ medical records and other health information provided to health plans, doctors, hospitals and other health care providers. 
Texas Medical Records Privacy Act requires “certain persons and entities including health care providers, health plans and entities that process health insurance claims to take certain measures with respect to protected health information…”  This law that provides more protection for patient privacy than is provided under HIPAA. The Act adopts the basic tenets of the HIPAA Privacy Standards and provides additional protections for Texans in some areas where HIPAA has left gaps. In most cases, the act prohibits using or disclosing health information without first obtaining an individual’s consent.
How to Be Reunited with My Kids?
It is very simple. You just have to show willingness to change. Then, comply with the court’s orders.
As mentioned above, Texas’ public policy is to encourage parents to share custody. The state government wants both parents be present in the child’s life. So, if the judge grants a drug test motion, you should comply with the order and submit to the drug test. If the judge refers you to rehab, you should comply with that order, too.
While in rehab you may be granted supervised visitation, or your visitation rights may be completely suspended. It will depend on your specific case.
If you successfully complete a treatment program and are actively participating in an ongoing recovery, it is very likely that the court will reverse its decision. In contrast, failing to comply with a court order could result in permanent termination of parental rights.
American Addiction Centers is a leading provider of inpatient and outpatient addiction treatment services. In fact, we have a treatment center in Texas. We offer same-day admissions and arrange transportation. Call our free and confidential helpline to explore your treatment options today. You want to be with your kids. Get better with treatment. Call us to get started.
What Happens When I Finish Rehab?
If you have lost custody of your children because of a drug problem, you can file a motion to get your custody back. But, the court will want to be sure that issues have been resolved before they consider returning the children to your care. When will your kids be back in your care?
How long it takes to be reunited with your children will depend on you. If you commit to maintaining a drug-free lifestyle, you’ll need to show proof over time. You’ll need to have and maintain a stable home and job. Then, you’ll need to provide evidence that you have mental, emotional, and financial stability. Finally, the court may evaluate your case and modify the custody or the visitation order.
Finishing rehab is only the first step in getting your kids back during a custody battle that involves drug or alcohol use. You still have a long road ahead of you. You’ll need to adjust to day-to-day life without using. This is why it is very important that you have an aftercare treatment plan developed that will keep you motivated to stay clean and sober. Aftercare usually includes a combination of counseling, support groups, or a stay in a sober home.
Yes, addiction is a disease,. The good news is that it can be treated and managed. It just takes time, proper treatment and motivation. Being a parent your children deserve is the best motivation. Change is possible. Call us today to learn how American Addiction Centers can help. Our admissions navigators are ready to talk with you 24-7, day or night. We’re waiting for your call.
Where to Find Rehab?
Finding a good rehab program that fits your needs may seem difficult, but there numerous treatment options in Texas. Where can you find a reputable rehab?
SAMHSA’s National Helpline – 1-800-662-HELP (4357)
Texas Department of State Health Services – Find Substance Abuse Services
CALL OUR HOTLINE
Don’t wait another day. Seeking treatment is not a sign of weakness. Think about your children and how your recovery will affect their lives in the long run. Every child deserves healthy and productive parents. Ask for help today!
When to Get Legal Help
Child custody and visitation rights issues can be emotionally demanding and legally complex. But, an experienced child custody lawyer can help you determine your best course of action, provide legal guidance, and represent your best interests in court. Here’s some useful links where you can search legal help:
Texas Access and Visitation Hotline (866)-292-4636, Monday – Friday, 1–7 p.m.
CPS Family Helpline 1-844-888-6565, Monday through Friday from 9:00 AM to 6:00 PM.
Texas Advocacy Project – Legal Phone Lines
We hope to have covered the topic of legal custody in Texas and to have answered your questions. But we know that you probably want to talk personally. Please feel free to call us day or night. Or, leave a questions in the comments below. We try to respond to all real life questions personally. And if we can’t answer your questions, we’ll refer you to someone who can help.