10. Child Custody and Visitation

Whenever decisions affecting custody and visitation rights are made, judges handling domestic relations cases should exercise authority to require, in order to promote the best interest of the child, the evaluation of a parent by appropriate alcohol or other drug treatment professionals, whenever the judge has credible evidence to suspect that the parent has alcohol or other drug abuse problems.

The Advisory Commission received testimony from several witnesses regarding the power of domestic courts, as a condition in custody or visitation matters, to require referral and evaluation of parents whom the courts have credible evidence to suspect have alcohol or other drug problems.243 It was apparent from this testimony that many judges and other court personnel are coggnizant of the degree to which their caseloads reflect substance abuse.244

A description of the typical situation in custody or visitation cases involving substance abuse was described to the Commission whereby the court hears an allegation by one parent as to the alcohol or other drug problem of the other.245 The court's observation of the parties may not be indicative of whether a problem in fact exists. In some cases, there may be additional evidence available from court social workers or from others outside the court. However, without the power to require a professional evaluation for substance abuse, the courts are left to make custody and visitation decisions on the very limited evidence before them. If the court accepts this limited evidence as credible, without any evaluation, it may be deciding custody or visitation based on a mistaken foundation. If evaluations were permitted based upon credible evidence, courts could make final custody and visitation determinations based on professional opinions rather than purely advisory statements. These concerns are the basis for this recommendation which follows the recent trend establishing court referral and diversion in areas such as juvenile cases,246 drunk-driving,247 and spouse or child abuse.248 Recent statutes in the latter areas provide a precedent, in addition to model language, authorizing such referrals.249

The issue of alcohol and other drug abuse by parents and its impact on children in custody and visitation cases is not new to domestic relations courts.250 The courts' attitude toward parental substance abuse problems, however, have been steadily evolving251 away from a strict, uncompromising moral condemnation of the abusing parent, to one of concern toward the child.252 Where some courts would have formerly denied custody or visitation, more recent decisions indicate a willingness by the courts to consider the recovery from the illness or the possibility that fitness for custody or visitation might be affected by treatment for substance abuse problems.253 The question to be addressed is whether or not domestic relations courts have the power to require evaluation for such problems under their existing statutory authority.

In the first instance, a domestic relations court's authority to refer an individual for substance abuse evaluation would seem to parallel other necessary protections for children such as supervised visitation254 or requirements for psychiatric or psychological treatment for parents and children.255 In the context of domestic relations cases, courts have been vested with a wide range of authority in deciding the delicate matters of custody and visitation. In addition to specifically requiring parents to attend counselling sessions,256 some courts now have the authority to act by: setting conditions on custody or visitation;257 seeking advice of professional personnel, whether or not employed by the court;258 ordering an appropriate agency to exercise continuing jurisdiction over the case;25 and ordering the use of physicians, psychiatrists, social agencies and others to facilitate conciliatory court functions.260

One source for these provisions has been the Uniform Marriage and Divorce Act (UMDA) which has been enacted in large part in Arizona, Illinois, Kentucky, Minnesota, Missouri, Montana and Washington.261 The UMDA includes several sections providing for supervision of the mental and physical health of the family in divorce proceedings.262 For example, UMDA Section 402 conditions custody on the "best interest of the child" considering inter alia: "the mental and physical health of all individuals involved."L63 With respect to visitation and custody, UMDA section 404(b) states:

The courts may seek the advice of professional personnel, whether or not employed by the court on a regular basis.264

In cases of contested custody, section 405(a) of the UMDA authorizes courts to employ an investigator who, in preparing a court-ordered report, may refer the child for professional diagnosis, or consult with medical, psychiatric or other professionals who have served the child in the past.L65

UMDA section 407 permits denial or modification of a parent's visitation rights in the event that such visitation may "endanger seriously the child's physical, mental, moral or emotional health"2b6 in which case, pursuant to UMDA Section 408(b), the court may also require continuing supervision over the exercise of the custodial or visitation terms of the decree by the local probation, welfare or court social service agency.267 In their comments to UMDA section 408, the Commissioners on Uniform State laws specifically noted that:

The court could intervene in the decision of grave behavioral or social problems such as refusal by a custodian to provide medical care for a sick child.268

In the case where a parent's alcohol or other drug problem is sufficiently grave, UMDA section 408 may authorize referral for evaluation and treatment. In one variation on UMDA provisions on supervision, Delaware does not specifically provide for court supervision but does allow the court to set "a specific limitation of the custodian's authority" in the best interest of the child.269

Other state statutes that do not follow the UMDA, however, rely upon broad language authorizing the domestic court to fashion custody or visitation orders "equitably" depending upon the courts "best judgment" in order to insure that the case is decided with the child's best interest as paramount.270

Therefore, it may prove beneficial to have either the UMDA provisions or language similar to other family "protection" statutes cited above.271

Without domestic court authority referring parents for evaluation, it may be futile to recommend further training and education for domestic relations court judges, court personnel and lawyers regarding alcohol and other drug abuse.272 Given the wide variation in procedures now utilized by domestic relations courts, this recommendation to provide specifically for referral and evaluation of parents reasonably suspected of alcohol and other drug problems is both timely and appropriate.


243See, e.g., testimony of Sheila B. Blume, M.D., Thomas H. Blatner, Princeton.

244Id.

245See, e.g., testimony of Hon. Leon Emmerson, Hon. Randolph Moore, Hon. Jerry Moore, Los Angeles.

246See the recommendation and report regarding juvenile offender treatment.

247See, e,g., 39 N.J. Stat. Ann. Sec. 50-4 (West 1984) for drunk driver treatment.

248See 16 D.C. Code Ann. Sec. 1005(c)(1)-(3)(1984):
(c) If, after hearing, the Family Division finds that there is good cause to believe the respondent has committed or is threatening an intrafamily offense, it may issue a protection order:
(1) directing the respondent to refrain from the  conduct committed or threatened and to keep the peace toward the family member;
(2) requiring the respondent, alone or in conjunction with any other member of the family before the court, to participate in psychiatric or medical  treatment or appropriate counseling programs;
(3) directing the respondent to perform or refrain  from other actions as may be appropriate to the effective resolution of the matter. (emphasis added).

See also the recommendation and report regarding child abuse and neglect.

249See, eg., Ill. Ann. Stat. ch. 40, Sec. 2303-8(c)(5) (Smith-Hurd 1984):
(c) The order of protection may include any or all of the following remedies:

(5) Requiring or recommending the respondent to undergo counseling for a specified duration with a social worker, psychologist, clinical psychologist, psychiatrist, family service agency, mental health center guidance counselor, or any other guidance service the court deems appropriate...

250See, eg., Ploscowe, Foster and Freed, Family Law: Intoxication, Drug Addiction and Parental Fitness, at 917-20 (2nd ed. 1972)(and cases cited therein).

251 See,  g., Note, The Best Interests of the Child in Custody  Controversies Between Natural Parents: Interpretations and Trends, 18 Washburn L.J. 482, 491-2 (1979): "Evidence of drunkenness is treated with contempt by most courts. The offending parent encounters difficulty in persuading the court he or she can provide a suitable living environment. An adverse impact on the child may be presumed." (citing, Comment, Child Custody: Considerations in Granting the Award Between Adversely Claiming Parents, 36 S. Cal. L. Rev. 255 (1963).

252Id. There has also been an apparent change in the attitudes related to drinking in particular: "Although the older cases regarded female drinking as immoral, the more recent cases look at its effect upon parental functioning and possible detriment to the child." For examples of this attitude, see Waliser, Measuring the Child's Best Interests - A Study of Incomplete Considerations, 44 Den. L.J. 132, 137 (1967):
Alcohol and motherhood are as incompatible as drinking and driving in terms of a mother's fitness to have custody. The alcoholic mother finds difficulty recovering custody of her children. Her drinking seems to contradict the devotedness a court expects in a mother.
See also Bergman, Custody Awards: Standards Used When the Mother Has  Been Guilty of Adultery or Alcoholism, 2 Fam. L.J. 384, 404 (1968).

253Ploscowe et al., supra note 250, at 918.
In the case of an alcoholic parent, the court should consider the welfare of both the patient and the child plus medical  opinion as to the effect of a continued relationship upon the  treatment of the parent for alcoholism. (emphasis added).
Cf. Hardin, When a Parent is Unfit, 4 Fam. Advoc. 8, 11 (1981):
It is not enough, therefore, to prove that a parent is an alcoholic. You must prove that, for example, the parent is neglectful while drinking, and that neither the drinking nor the neglect is likely to improve.
See also Hardin and Tazzara, TERMINATION OF PARENTAL RIGHTS, at 8-9 (1981).

254See, e.g., Parker v. Ford, 89 A.D.2d 806, 453 N.Y.Sec.2d 465 (1982)(supervised visitation with "unfit," "common drunkard" father); Tibbetts v. Tibbetts, 6 Ariz. App. 316, 432 P.2d 282 (1967)(transferring custody to admitted alcoholic father who had stopped drinking).

255See generally Note, Making Parents Behave: The Conditioning of  Child Support and Visitation Rights, 84 Colum. L. Rev. 1059 (1984).

256See, e.g., 23 Pa. Cons. Stat. Ann. Sec. 1006 (Purdon 1984).

257See, e.g., Minn. Stat. Sec. 518.13(h)(1) (1984).

258See, e.g., Ind. Code Ann. Sec. 31-1-11.5-21(e) (West 1984).

259See, e.g., Wash. Rev. Code Ann. Sec. 2609.250 (West 1984). See also Ind. Code Ann. Sec. 31-1-11.5-21(c) (West 1984).

260See, e.g., Ariz. Rev. Stat. Ann. Sec. 25-381.16C (West 1984); Cal. Civ. Proc. Code Sec. 1770, 1771 (West 1984); Ind. Code Ann. Sec. 31-1-11.5-19 (West 1984); and Iowa Code Ann. Sec. 598.16 (West 1984).

261 Uniform Marriage and Divorce Act, National Conference of Commissioners on Uniform State Laws, 9A U.L.A. 56 et. seg., (Rev. 1973).

262Two cases decided under the Illinois version of the UMDA have indicated that a willingness to undergo psychiatric treatment may be a factor in the court's allowance of visitation. See Taraboletti v. Taraboletti, 14 I11.2d 350, 372 N.E.2d 155, 56 Ill. App.3d 854 (1978)(mother with a history of violence and paranoia, although denied visitation, may re-petition the court upon obtaining psychiatric treatment); In re Marriage of Newt, 57 111. App.3d 1046 (1981) (lower court improperly denied visitation to mother with history of severe psychiatric difficulty who was much improved and continuing psychiatric treatment and medication as prescribed).

263See Ariz. Rev. Stat. Ann. Sec. 25-332(A)(5) (1984).

264See Ariz. Rev. Stat. Ann. Sec. 25-334(B) (1984); Del. Code Ann. tit. 13, Sec. 724(b) (1984); Ill. Ann. Stat. ch. 40, Sec. 604(h) (Smith-Hurd 1984); Ind. Code Ann. Sec. 31-1-11.5-2(e) (West 1984).

265See Del. Code Ann. tit. 13, Sec. 255(b) (1984); Ill. Ann. Stat. ch. 40, Sec. 605(b) (Smith-Hurd 1984); Ind. Code Ann. Sec. 31-1-11.5-22(b) (West 1984).

266See Ariz. Rev. Stat. Ann. Sec. 25-337 (1984); Ill. Ann. Stat. ch. 40, Sec. 607; (Smith-Hurd 1984); Ind. Code Stat. Ann. Sec. 31-1-11.5-24 (West 1984).

267See Ariz. Rev. Stat. Ann. Sec. 25-338(b) (1984); Ill. Ann. Stat. ch. 40, 608t(Smith-Hurd 1984). Ind. Code Ann. Sec. 31-1-115-21(c) (West 1984).

268See report on consent to treatment. See also Sokolsky, The Sick Child and the Reluctant Parent, 20 J. Fam. L. 69 (1981).

269Del. Code Ann. tit. 13, Sec. 728 (1984).

270See, 2,g., Conn. Gen. Stat. Ann. Sec. 466-56, 46(b)-59; Iowa Code Ann. Sec. 598.41 (West 1985).

271 See supra notes 248 and 249.

272See the recommendation and report regarding legal training on alcohol and other drug problems.