by Cassidy Landry
Picture a devoted parent entangled in a civil custody dispute, their future with their child hanging in the balance. Now imagine that this parent is also confronting a substance use issue – an affliction often misinterpreted and stigmatized by society at large. Automatically, the odds seem stacked against them, as biases often equate addiction with unfit parenting. But what if this parent has been nothing but loving, supportive, and present for their child? What if their substance use is a health challenge they’re grappling with, rather than a willful neglect of their family responsibilities? These questions help illustrate why we should reconsider how we approach these deeply sensitive and life-altering custody disputes, opting for a more compassionate, nuanced perspective that acknowledges the complexities of addiction.
This article delves into the inner workings of civil court proceedings where substance use allegations are at the forefront. We will examine how the Department of Health and Welfare’s child protective protocols and guidelines diligently investigate such claims, aiming to ensure the safety and well-being of children. However, we will also shed light on how these investigations may not necessarily carry the same weight in civil custody disputes, where parental rights and custody battles are decided. In these emotionally charged scenarios, the question arises – do child welfare agency’s investigative findings and protective measures truly matter when determining the outcome of civil custody disputes? Let us explore the complexities and implications of this intricate intersection between child protective investigations and civil court custody decisions.
The Department of Health and Welfare
The Department of Health and Welfare plays a crucial role in safeguarding children’s welfare, guided by well-defined protocols and evidence-based guidelines.[i] The Department of Health and Welfare has established a series of protocols that dictate how to work with parents struggling with substance use. A key tenet in these protocols is that drug testing should not be the sole determinant in deciding whether a parent should be allowed visitation rights with their child.[ii]
To make this more concrete, consider that these protocols were established with an emphasis on promoting the child’s best interests and well-being, recognizing the value of a relationship with both parents and addressing the parent’s substance use issues.[iii] The intention is to form a comprehensive, multifaceted view of the parent’s situation, considering various factors such as the severity of the substance use, the parent’s engagement with treatment, and the overall home environment.
Under these protocols, drug testing is used as one piece of a larger puzzle that includes numerous other considerations to ascertain what truly constitutes the child’s best interest.[iv] The goal is to create an environment where the child is safe, cared for, and has the opportunity to maintain a meaningful relationship with their parent(s) undergoing substance use treatment. However, these nuanced and considerate protocols become murky when faced with the stark realities of civil cases. If a parent fails a drug test, the other party involved can appeal to the court for an ex parte order. This order can effectively result in the suspension of visitation rights, sometimes without the Department of Child Protection Services being involved in the decision at all. While this may be the appropriate action in some cases, it is not a one-size-fits-all solution.
If there is no immediate safety concern for the child visiting the substance-using parent, the court, by issuing the ex parte order, may unknowingly initiate a cascade of problems for both the child and the parent. Removing the child’s ability to visit their parent based solely on a failed drug test, without considering the wider context or involving child welfare professionals, can lead to emotional distress for the child, increased feelings of isolation for the parent, and potential deterioration in the parent-child relationship.[v]
Moreover, it may inadvertently discourage substance-using parents from seeking help, as they may fear that involvement with any form of authority will result in their children being taken away. This could potentially lead to a more entrenched and secretive pattern of substance use, further exacerbating the problem and distancing the possibility of recovery and reunification. In civil legal matters involving substance-using parents, the misapplication of department guidelines can have grave consequences.[vi] These parents may face unwarranted scrutiny and judgment akin to child protective cases, even when circumstances differ significantly. Consequently, substance-using parents are often left without proper legal representation, leading to unfair judgments based on stigma rather than evidence.
Such misapplied guidelines can result in rushed decisions that prematurely separate families.[vii] Children may be needlessly prevented from visiting a parent, causing emotional distress and trauma for both child and parent. This disruption can harm the child’s emotional and psychological well-being, jeopardizing their sense of stability and security.[viii] Additionally, parents may feel disempowered and unheard, as their rights are not adequately protected during legal proceedings. To address this issue, it is crucial to raise awareness among legal professionals and judges about the importance of consistent and evidence-based decision-making in all civil legal matters.
Lack of Access to Legal Representation
Imagine a parent entangled in a civil custody dispute, standing alone in a courtroom without the assistance of legal counsel. While this might be an all-too-common reality for many substance-using parents, it is a challenge faced by countless others who lack access to legal representation. Unlike child protective cases, where the right to legal counsel is often assured, civil proceedings offer no such guarantees. This leaves parents exceedingly vulnerable regardless of their struggles with substance use or other complicating factors. Such lack of representation can lead to outcomes that neither serve the child’s best interests nor uphold the principles of family preservation.
Legal representation is not just a privilege – it’s a cornerstone of a fair and equitable legal system that empowers parents to effectively present evidence, challenge allegations, and argue for keeping families intact when it is safe and appropriate. Without it, navigating the convoluted legal system becomes daunting, effectively cutting off access to crucial supportive services and rehabilitation resources.
Given the gravity of what’s at stake, it’s time to advocate for policy changes guaranteeing the right to legal representation for all parents in civil legal matters, not just those battling substance use issues. By ensuring that evidence-based assessments and comprehensive evaluations are conducted, we can make better-informed decisions that protect the rights of parents and genuinely serve the child’s best interests.
Ensuring Fair Treatment, Equal Rights, and Addressing the Impact of Stigma
Fairness and equal rights for all are the core tenets of any equitable legal system. In civil matters, especially those involving parents contending with substance use issues, these principles should guide every stage of legal proceedings. Stereotypes and biases, particularly surrounding substance use, can cloud the judgment of even the most well-intentioned individuals, leading to decisions that are neither fair nor in the child’s best interest.
Ensuring fair treatment is more than a principle; it’s a practice that starts with granting access to qualified legal representation for all parents. A capable legal team can navigate the labyrinthine legal system, ensure that decisions are based on evidence rather than assumptions, and advocate for the parent’s rights. In this context, legal professionals, judges, and other stakeholders would benefit from training that focuses on the role and impact of stigma, ensuring that prejudices don’t color legal proceedings.
Moreover, the lens through which these cases are viewed needs a serious shift toward evidence-based and trauma-informed practices. Comprehensive evaluations should be conducted rather than relying on stigmatized assumptions that can unjustly label a parent as unfit. These assessments should consider all aspects of a parent’s life, including challenges related to substance use, and should be paired with options for rehabilitation and support where appropriate.
The stigma tied to substance use extends its tendrils far beyond the courtroom. It serves as a barrier to accessing crucial resources and can deter parents from seeking help, thus exacerbating the challenges tied to substance use. This creates a cycle of prejudice and missed opportunities for rehabilitation, hindering parents in their legal battles and personal struggles.
Focusing on coordinated efforts to address these issues, we can aspire to a legal system that aligns more closely with ideals of justice, fairness, and compassion. Not only will this serve parents embroiled in legal difficulties, but it will also serve the best interests of their children, the ultimate aim of any custody dispute.
The DARVO Effect in Action:[ix] A Hypothetical Scenario
Imagine a father, currently grappling with substance use issues, who nevertheless has maintained a stable job, completed parenting and financial classes, and consistently ensured his children are taken care of. He is involved in a custody dispute with the children’s mother and because of his acknowledgement of his struggle with addiction, he is required to take drug tests per court order. Having passed all required drug tests the court, acknowledging his responsible behavior and active efforts to be a good parent, has granted him bi-weekly visitation rights. However, the mother frequently denies him the visitation that the court has ordered.
Feeling his rights are being unjustly deprived, the father files a motion for contempt of court against the mother. She counters by employing the DARVO strategy. The DARVO strategy stands for “Deny, Attack, and Reverse Victim and Offender.” Essentially, the DARVO strategy is a way for an individual to manipulate a situation and attempt to reverse the role of victim and offender so that the initial victim looks like the offender.
In this hypothetical, the mother denies being in contempt, then she attacks the father’s character by highlighting his ongoing struggle with substance use, attempting to portray him as unfit. Finally, she reverses the roles of victim and offender, asserting that she’s only trying to “protect” their children from their father’s “harmful influence,” even though there is no evidence to suggest that the children are at risk when with him.
In this hypothetical case, the mother’s use of DARVO serves to manipulate societal stigmas around addiction, drawing focus away from her own failure to adhere to the court order. The father is put on the defensive, scrambling to counter unwarranted claims about his fitness as a parent, rather than concentrating on the original issue of denied visitation. This illustrates the critical need for legal representation for parents in civil proceedings.
This cautionary tale underscores the importance of equipping legal stakeholders with the tools to recognize and counter DARVO strategies. It stresses the need for a legal approach that is both evidence-based and trauma-informed, focusing on what genuinely serves the child’s best interests rather than getting sidetracked by diversionary tactics.
Addressing the Concerns
Drawing from the hypothetical scenario of a father caught in the webs of the DARVO tactic, we see the urgent need for accelerated assessment policies in civil legal matters involving parents and substance use allegations. Just like the father in our example, many parents face delays that perpetuate uncertainty and emotional turmoil for both them and their children. Implementing an accelerated assessment policy becomes essential to counteract manipulative strategies like DARVO that can stretch out legal proceedings.[x] Setting specific timeframes for conducting assessments can ensure the courts that vital information is gathered promptly, leading to well-informed decisions in the child’s best interest.
The emotional and psychological toll such delays take on children is a pressing concern. Extended uncertainty can have detrimental effects on a child’s well-being, which becomes even more problematic when manipulative tactics are in play.[xi] Courts must recognize the time-sensitive nature of these cases. Without sacrificing the quality of their assessments, they can and should expedite the decision-making process to prioritize the emotional and psychological health of children and their families. Through such reforms, the legal system can better safeguard the well-being of all involved parties, ensuring that justice is swift, well-informed, and, most importantly, fair.
Mandatory Fast-Track Assessment
Using the hypothetical dad’s case as a framework, let’s consider what a mandatory fast-track assessment policy would look like in practice. Under this system, as soon as a civil case involving allegations of parental substance use is filed, it would be flagged for immediate attention. Instead of waiting for months to even start the assessment process – which can cause emotional strain for the child and potentially disrupt their living situation – the court would initiate a comprehensive evaluation within a set timeframe, say, within two weeks.
This expedited process would involve gathering information from multiple sources, including medical records, interviews with child services, and possibly even character references from teachers or community members. The goal is to compile a well-rounded picture of the parent’s capabilities rather than leaning solely on the substance use allegations. This way, the court can differentiate between parents who may be struggling with addiction but are nonetheless attentive and responsible caregivers, and those who truly pose a risk to their child’s well-being.
It’s important to note that “fast-track” doesn’t mean “rushed” or “sloppy.” Each assessment would be conducted with the same level of rigor as any other case. The expedited timeline would be built into the legal system’s workflow, allowing courts and social services to collaborate more effectively. Legal teams would be trained to manage these assessments efficiently, ensuring that decisions are based on evidence and a thorough review of the facts, rather than stigmatizing assumptions.
Implementing such a fast-track assessment policy eliminates undue delays that can cause emotional and psychological distress for children and parents alike. At the same time, we also ensure that each case is treated with the seriousness and thoroughness it deserves, ultimately arriving at decisions that are truly in the child’s best interest.
Balancing Safety and Reunification
The accelerated assessment policy is a critical tool in the child welfare system’s toolkit, guided by two primary objectives: ensuring the child’s safety and facilitating reunification when safe and feasible. The priority in every case is the child’s safety. However, the system understands the vital role a parent-child relationship plays in a child’s development and strives to maintain this bond whenever possible. The concept of an “accelerated assessment” implies a faster, more streamlined process to evaluate a family’s situation when substance use is involved. A quicker assessment process benefits all parties involved. It means less time for children in uncertain or potentially unsafe environments. For parents, it implies a quicker referral to appropriate services and interventions, including substance use treatment, parenting classes, counseling, and more.
Through timely assessments, parents can access the necessary services to address their substance use issues more swiftly. This faster timeline increases the chances of a successful recovery and the possibility of the parent providing a safe environment for their child. Therefore, the likelihood of family reunification is enhanced when the threat of substance use does not pose significant risks to the child.
Understanding this balance between safety and reunification underscores the importance of implementing the accelerated assessment policy. It does not seek to sever parent-child relationships prematurely but rather to prioritize the child’s safety while expediting the necessary steps toward reunification when appropriate.
Transparent and Accountable Process
Successfully implementing the accelerated assessment policy requires a high degree of transparency and accountability. Transparency ensures that all parties involved, including the parents, child, caseworkers, and legal representatives, are aware of the policy’s guidelines, their rights, and their responsibilities within the process. Conversely, accountability underscores the need for monitoring mechanisms to oversee the policy’s execution.[xii] It is vital to ensure that the guidelines are followed, and the assessments are performed accurately and fairly. Moreover, it demands evaluating the policy’s impact on the children and families’ well-being. This includes the immediate outcomes and the long-term effects on family stability, parental substance use, and child development.
For accountability to be meaningful, there should be clearly outlined processes for reviewing decisions, addressing grievances, and making adjustments based on feedback and changing circumstances. These processes should also be transparent and easily accessible to all involved parties. In essence, transparency and accountability form the backbone of an effective accelerated assessment policy. They ensure the process is fair, responsive, and ultimately serves the child’s best interests, while providing the necessary support to parents in their journey towards recovery and potential reunification.
As we reach the end of our exploration, think back to the assumptions or judgments you might have held when you first considered the topic of addiction and parenting. The complexities we’ve discussed underscore the urgent need for systemic change that takes a more compassionate, equitable approach to civil legal matters involving parents with substance use issues.
To safeguard substance-using parents and their children in civil legal matters, bridging the gap between department protocols and legal proceedings is imperative. This entails challenging the impact of stigma, ensuring equal rights to legal representation, and demanding evidence-based approaches. By fostering collaboration between stakeholders, implementing transparent and accountable processes and mandatory fast-track assessments, and recognizing the urgency of these cases, we can break the chains of stigma and create a just and compassionate legal system that prioritizes the welfare of all parties involved.
The road to change may be complex, but the stakes are high. The well-being of children and the preservation of families demand our utmost attention and care. We can foster a legal system that recognizes the humanity of substance-using parents, supports their recovery, and nurtures the bonds between parents and children by embracing a compassionate, evidence-based approach.
Hailing from Houston, Texas, Cassidy Landry moved to Boise in 2018. She is pursuing a social work degree fueled by a passion for supporting and strengthening communities. When not immersed in studies, she is dedicated to the joys and challenges of parenting two beautiful children, ages nine and three. She considers family and education her greatest treasures.
[i] Public Document, Idaho Dept. of Health & Welfare, Standard for Child Well-Being (2017), https://publicdocuments.dhw.idaho.gov/WebLink/DocView.aspx?id=205&dbid=0&repo=PUBLIC-DOCUMENTS.
[ii] Public Document, Idaho Dept. of Health & Welfare, Drug Testing Protocol in Child Welfare Cases (2010), https://publicdocuments.dhw.idaho.gov/WebLink/DocView.aspx?id=1016&dbid=0&repo=PUBLIC-DOCUMENTS.
[iv] Public Document, Idaho Dept. of Health & Welfare, Standard for Expedited Safety Assessment Comprehensive Safety, Ongoing, and Re-Assessment (2022), https://publicdocuments.dhw.idaho.gov/WebLink/DocView.aspx?id=206&dbid=0&repo=PUBLIC-DOCUMENTS.
[v] Tabashneck, Stephanie, Substance Use and Parenting: Best Practices for Family Court Practitioners, June 2021, https://www.afccnet.org/LinkClick.aspx?fileticket=-RkXrNzIkr8%3D&portalid=0.
[vii] Battersby, Alison, Clinical Textbook of Addictive Disorders, (3rd ed. 2011).
[viii] Roberts, Dorothy E., The Challenge of Substance Abuse for Family Preservation Policy, 3 J. Health Care L. & Pol’y, 72 (1999).
[ix] Harsey, Sarah & Freyd, Jennifer J., Deny, Attack, and Reverse Victim and Offender (DARVO): What Is the Influence on Perceived Perpetrator and Victim Credibility?, 38 J. Aggression Maltreatment & Trauma 897-916 (2020).
[x] Salem, Peter et al., Triaging Family Court Services: The Connecticut Judicial Branch’s Family Civil Intake Screen, 27 Pace L. Rev. 741 (2007).
[xi] Masten, Ann S. & Cicchetti, Dante, Development and Psychopathology, 3 Developmental Cascades 491-495 (2010).
[xii] McGee, Rosie & Gaventa, John Shifting Power? Assessing the Impact of Transparency and Accountability Initiatives, 2011 IDS Working Papers 1-39 (2011).