Can I Get Custody of My Grandchild if Their Parent Is Abusing Drugs or Alcohol?

Watching someone struggle with drugs or alcohol can be extremely difficult. When a parent’s substance use begins putting a child at risk, grandparents face difficult questions.

In California, a parent’s substance abuse can be highly relevant to a child custody case. But parents have priority when it comes to custody of their children. A grandparent seeking custody over a parent’s objection must meet specific legal requirements, which can include demonstrating that remaining in the parent’s custody would be detrimental to the child.

Amelia J. Mattis is an experienced San Diego grandparents’ rights attorney. If you are concerned about a parent’s drinking or drug use and how it may affect your grandchild, Mattis Law, A.P.C. can assess your circumstances, explain your legal options, and help determine which legal procedure may be appropriate.

When Can a Court Award Custody to Grandparents in California?

California Family Code § 3041 establishes an important standard when someone other than a parent seeks custody over a parent’s objection. Before awarding custody to a nonparent, the court must find that parental custody would be detrimental to the child and that awarding custody to the nonparent is required to serve the child’s best interests.

Generally, the finding of detriment must be supported by clear and convincing evidence. That means grandparent custody cases require more than showing that a parent drinks heavily, uses drugs, has a substance-use disorder, or has made poor choices. The critical issue is how the parent’s circumstances affect the child’s safety and well-being.

For example, a court may consider evidence of conduct or conditions that place the child at risk or prevent the parent from consistently meeting the child’s basic needs, including:

• Repeatedly becoming intoxicated while supervising a young child
• Driving with the child while impaired
• Leaving drugs within the child’s reach
• Disappearing for extended periods
• Failing to consistently provide adequate food or shelter
• Failing to obtain necessary medical care for the child
• Failing to provide appropriate supervision

How Does a Parent’s Substance Abuse Influence Child Custody Cases?

California courts place substantial emphasis on children’s health, safety, and welfare when making custody decisions. Family Code § 3011 specifically identifies habitual or continual illegal use of controlled substances, habitual or continual abuse of alcohol, and habitual or continual abuse of prescribed controlled substances as considerations in determining a child’s best interests.

The court may require independent corroboration before considering substance-abuse allegations. That’s why a child custody dispute should focus on facts rather than general accusations. These allegations carry more weight when they are supported by evidence showing habitual or continual use and its consequences.

Evidence Can Show How a Grandchild Is at Risk?

Documentation can be extremely important. California law expressly recognizes potential corroboration from sources including law enforcement, courts, probation departments, social welfare agencies, medical facilities, and rehabilitation facilities.

Relevant evidence may include:

• DUI or drug-related criminal records that document arrests, charges, convictions, or other incidents involving substance use.
• Police reports involving intoxication, domestic disturbances, impaired driving, drug possession, or other conduct that may have endangered the child.
• Child Protective Services records that document investigations, reports of suspected abuse or neglect, safety concerns, or agency involvement with the family.
• Rehabilitation or treatment records that are lawfully obtainable may provide relevant information concerning substance-use treatment.
• Prior court findings or orders addressing substance abuse, child safety, neglect, domestic violence, or related concerns.
• Failed drug or alcohol tests that may provide evidence of ongoing or recent substance use.
• Text messages, emails, or other communications in which the parent discusses substance use, intoxication, or conduct affecting the child’s care.
• Photographs or videos documenting unsafe conditions, intoxication, drug-related activity, or other circumstances affecting the child.
• Communications concerning missed pickups or extended absences that may demonstrate a pattern of failing to care for or supervise the child.
• School attendance records showing repeated absences, tardiness, or other problems that may be connected to instability in the child’s home.
• Witness testimony from relatives, neighbors, teachers, caregivers, or others who personally observed intoxication, drug use, neglect, or unsafe behavior.
• Records of specific incidents, including dates, what occurred, who was present, and how the incident affected the child’s safety or well-being.

Grandparents should preserve evidence rather than relying solely on their recollection. Keep records of incidents, including dates, what happened, who was present, and how the child was affected. But you should not illegally access private accounts or medical records in an attempt to build a case.

Talk to a San Diego Grandparent Custody Attorney About Your Concerns

Mattis Law, A.P.C. handles grandparents’ rights, child custody, substance-abuse concerns, emergency custody matters, supervised visitation, and custody modifications.

Amelia J. Mattis represents parents facing high-conflict child custody disputes throughout San Diego County. She has been named as a Top 10 Family Law Attorney in California by the American Institute of Family Law Attorneys, and Super Lawyers has recognized her as a Rising Star.

If you believe your grandchild’s safety or well-being is being jeopardized by a parent’s alcohol or drug abuse, call (858) 328-4400 to discuss your options during a free consultation with San Diego family law attorney Amelia J. Mattis.

Protecting Your Rights, Serving Your Needs.

FAQs About Seeking Custody When Your Grandchild’s Parent Has Substance Abuse Problems

When can a grandparent seek custody because a parent is abusing drugs or alcohol?

Under California law, a nonparent seeking custody over a parent’s objection generally must establish by clear and convincing evidence that parental custody would be detrimental to the child and that awarding custody to the nonparent is required to serve the child’s best interests.

What evidence can help prove a parent’s substance abuse is putting a child at risk?

Relevant evidence may include DUI or drug-related arrests, police reports, failed drug or alcohol tests, treatment or rehabilitation records that are lawfully obtainable, text messages, photographs, and witness testimony. Evidence showing how a parent’s substance abuse affects the child’s supervision, safety, schooling, medical care, or daily needs can be particularly important.

What is the difference between grandparent custody and guardianship in California?

Probate guardianship can give a nonparent legal responsibility for a child when a parent cannot adequately provide care. Grandparent custody may instead arise in a family-law proceeding under California’s nonparent custody rules. Which option is appropriate can depend on existing court cases, the child’s living arrangements, and the circumstances affecting the parents.