Practical considerations
It is important to remember that drug/alcohol evaluation and testing does not provide a clear-cut answer in child custody proceedings. Any drug or alcohol use must be evaluated under the standard used in child custody disputes: “the best interests of the child.” However, what is in the child’s best interests can be disputed in a courtroom. One California judge understood this as a process to identify the parent who can best provide the child with “… the ethical, emotional, and intellectual guidance the parent gives the child throughout his formative years, and beyond ….”15 However, in determining child custody the need for assuring the child’s physical and emotional safety overrules these long-term goals, and the parents’ emotional needs are disregarded. In a custody dispute, the conflict between parents vying for custody of their child is matched by a corresponding tension between the state’s interest in protecting a minor child while preserving an adult’s right to parent her child.
The Montana custody dispute described in Stout v Stout16 demonstrates some aspects typical of these cases. In deciding to grant custody of a then 3-year-old girl to the father, the presiding judge noted that, although the mother had completed an inpatient alcohol treatment program, her apparent unwillingness or inability to stop drinking or enroll in outpatient treatment, combined with a driving under the influence arrest while the child was in her care, were too worrisome to allow her to have physical custody of the child. The judge mentioned other factors that supported granting custody to the father, but a deciding factor was that “the evidence shows that her drinking adversely affects her parenting ability.” The judge’s ruling demonstrates his judgment in balancing the mother’s legal but harmful alcohol use with potential catastrophic effects for the child.
Although a thorough drug/alcohol evaluation, an evidence-based set of treatment recommendations, and a well-planned monitoring program all promote progress in a child custody dispute, the reality is that the clinical situation could change and all 3 aspects would have to be modified.
Manualized diagnostic rubrics and formal psychological testing, although often used in general forensic assessments, usually are not central to the drug/alcohol evaluation in a child custody dispute,17 because confirming a SUD diagnosis might not be relevant to the task of attending to the child’s best interest. Rather, the danger—or potential danger—of the subject’s substance use to the minor child is paramount, regardless of the diagnosis. Of course, an established diagnosis of a SUD might be relevant to the parent being examined, and might necessitate modifications in the testing protocol, the tissues examined, and the monitor’s overall level of skepticism about testing results.
The evaluator and monitor should be prepared to respond quickly to a slip or relapse, while remaining vigilant for exaggerated, inaccurate, or even deceitful accusations about the subject from the co-parent or others. The evaluator should assess all the relevant sources of information when performing an evaluation and use careful interviewing and testing techniques during the monitoring process. Even with this sort of deliberate evaluation and monitoring the evaluator should never assert that any testing regimen is incapable of error, and always keep in mind that the primary goal—and presumably the interest of all parties involved—is to protect the child’s well-being.