The Effect of Drug Allegations on Custody and Visitation

In the past five years, deaths related to heroin overdose in the metro Atlanta area have spiked by 3,844%. According to a recent 11Alive Investigative Report, the heroin epidemic is devastating the area between Johns Creek/Alpharetta to Marietta to Atlanta.

As a family law attorney, I have represented clients in divorces and custody modifications on both sides of accusations related to illegal drug use or prescription drug abuse. Although drug use can impact property distribution and alimony in divorces without children, the accusation most often arises in cases concerning custody and visitation.

How do drug allegations affect custody and visitation?

The first thing to know is the legal standard a judge will use when reviewing a case. Georgia judges make decisions in custody cases based on the best interest of the child. In a divorce, both parents begin on equal footing. Judges make the decision using the many factors outlined in O.C.G.A. 19-9-3, which include past parenting of the child in question and ability to parent the child in the future. One of the factors is any evidence of substance abuse by either parent.

The second thing to know is that judges have different standards of proof for different cases. Most people are familiar with the legal standard “beyond a reasonable doubt” that is used in criminal cases; however, this is not used in a divorce.

In a divorce, the standard of proof is “preponderance of the evidence,” which means that drug accusations don’t need to be proven beyond a reasonable doubt. Instead, the judge must decide if the evidence shows that an accusation is more likely than not to be true. If the evidence is tipped ever so slightly in one parent’s favor, the judge can choose to make that parent the primary custodian.

The judge can vest custody in either parent based on what the judge determines is best for the child. A parent does not have to be unfit to lose primary custody to the other parent. A judge simply chooses the best person to promote the child’s welfare and happiness. So, if one parent has a history of drug use, even mild drug use like marijuana, the judge can give the other parent primary custody.

If drugs are an issue in your divorce, it’s important to have a family law attorney who knows how to obtain the evidence necessary to prove or disprove the allegations. Call Lynn Law Firm in Lawrenceville, Georgia, for more information.