Substance Use Evaluations in Family Court
By Tom Horvath, PhD
Although these evaluations are often termed substance “abuse” evaluations, that term is outdated, and it assumes that substance problems exist, when they may not. When one or both divorcing parents allege that the other parent uses substances (alcohol, cannabis, cocaine, etc.) in a way that is harmful to the children, the Court may rely on expert recommendations about what course of action to take.
Below are the definitions and principles I use to guide the recommendations I make in substance use evaluations. Although the principles may be of less general interest, the definitions are informative for anyone with an interest in addictive problems.
A major factor in these evaluations is that some substance users will minimize or misrepresent their substance use and its consequences. An equally major factor is that the allegations may similarly maximize or misrepresent what has occurred. Unfortunately, there appears to be almost no penalty in Family Court for inaccuracy on either side. In many cases sorting out the actual history is close to impossible, and the recommendations focus on collecting evidence going forward.
Addictive problems: A term that includes both substance problems and problems arising from activities (processes, behaviors) like gambling, video games, pornography, etc. If activities are also included, then the substance use continuum becomes the addictive behavior continuum.
Alcohol problems: Excessive drinking such that the drinker, on the substance use continuum, exhibits misuse, or mild, moderate, or severe alcohol use disorder.
Baseline risk: In any large enough population of individuals who have never exhibited substance problems, a percentage will develop problems in the future. The precise percentage appears to be unknown (for parents), but it is likely to be a considerable percentage, given that it is estimated that in the US 1 in 3 residents will exhibit a substance use disorder during their lifetimes. No parent can drop below this baseline risk. A parent with a previous history of substance problems can return to baseline risk, or close to that level, with the passage of enough time (although the parent will not necessarily do so).
DSM: The Diagnostic and Statistical Manual, currently in the 5th edition, text revision, DSM5-TR (2022), published by the American Psychiatric Association. The DSM establishes the names of and criteria for mental health and addictive diagnoses and is used throughout the behavioral health industry.
Substance problems: Excessive substance use such that the user, on the substance use continuum, exhibits misuse, or mild, moderate, or severe substance use disorder.
Substance problems as behaviors: The DSM, NIAAA (National Institute of Alcohol Abuse and Alcoholism), and other authorities view substance problems as changeable behaviors, rather than as an innate characteristic of the individual.
Substance problems as diseases: NIDA (National Institute on Drug Abuse) and ASAM (American Society of Addiction Medicine), and other authorities view moderate to severe substance problems as diseases that reside within the individual, and which therefore may not be changeable.
Substance use continuum: There are 6 segments on this continuum: abstinence, moderation, misuse (or sub-clinical use), mild substance use disorder (SUD, as defined by the DSM), moderate SUD, and severe SUD. Everyone has a place on this continuum for each substance or class of substances. For instance, one person might abstain from alcohol, moderate cannabis, and have a moderate opioid use disorder. Individuals can move up and down the continuum over the course of their lives (although some authorities suggest that once someone has moderate or severe SUD they stay there; see “substance problems as diseases”).
Substance use disorder (SUD): As defined by the DSM, which identifies 11 criteria for SUD: 2-3 criteria indicate a mild SUD, 4-5 moderate, 6 or more severe. There are no criteria about quantity or frequency of substance use. The criteria are based on the problems that can arise from use, not use itself. An SUD is a pattern of behavior that occurs within a one-year timeframe. Although medical or psychological testing can be informative, without an accurate history a firm diagnosis is not possible. The evaluator may have a clinical impression, but without supportive evidence that impression it is of limited value. It may be tempting to accept allegations about substance problems and over-ride contrary reports, but without additional evidence this procedure is not defensible.
Principles upon which recommendations are formulated:
The purpose of a substance use evaluation is to provide the Court expert opinion about how to prevent a parent’s substance problems from having a negative impact on the child or children. If there is history of substance problems abstinence from one or more substances while parenting, monitored by drug testing, is often recommended. Monitoring provides current and credible evidence about substance use, so that the Court, when making future decisions, does not need to rely on conflicting testimony or expert opinion about the past.
If a parent exhibits substance misuse on the substance use continuum, but not a DSM substance use disorder, expert recommendations should nevertheless focus on the impact of that misuse on the children.
Although a DSM diagnosis might no longer exist (over time there is active diagnosis, then diagnosis in remission, then no diagnosis), expert recommendations should focus on any substance problems within the last 5 years or longer. This timeframe is implied by Family Code Section 3041.5 (which allows for consideration of “a conviction within the last five years for the illegal use or possession of a controlled substance”) and is consistent with the clinical observation that it may take years for someone to return to baseline risk.
Behavior vs. Disease in Substance Use Evaluations
Expert recommendations are more evidence-based when they view substance problems as behaviors rather than substance problems as diseases. Courts are evidence oriented. The controversy regarding substance problems as behavior or as disease may not be resolved in our lifetimes. The parent’s actual behavior remains the primary concern. Even if the expert were to review brain scans, behavior would still need to be inferred from those scans. Expert testimony about the 11 DSM criteria is significantly more grounded in observable evidence than a highly inference-based expert opinion about whether the individual exhibits the disease of addiction.
Current and future objective information from 3rd party substance monitoring is preferable to uncertain historical information. Because of conflicting reports, even with extensive investigation (which is beyond the scope of most substance use evaluations), the exact history may be unknowable.
Even if the exact history of substance problems were known the history does not necessarily predict the future. When loss of time with one’s children is at stake, parents can become highly motivated to change. Consequently, a definitive determination about diagnosis is of limited value. Whatever the diagnosis, it could change.
Even though the exact history may be unknowable, the level of proposed monitoring needs to reflect the approximate or reasonably suspected history.
Setting Parents Up for Success vs. Punishment
Rather than viewing monitoring, treatment, or other required activities as a form of punishment for the past, the expert should focus on proposing a pathway that enable the parent’s success. It is in the best interests of the child to have two successful parents.
A recommendation to deprive a parent of the option to drink while not with the children should be made only on strong evidence that continuous abstinence is necessary to have abstinence while parenting.
When a highly desired outcome (e.g., time with one’s children, maintenance of one’s professional license) is at issue, required treatment is likely to be less effective than substance monitoring (which is quite powerful). If a parent cannot comply with monitoring, for the sake of being with their children, then treatment, as the less powerful approach, is unlikely to be helpful.
Treatment can be harmful. Substance monitoring already presents a substantial burden on a parent (and indirectly, on the children). Adding treatment requirements in addition could easily be counterproductive. Coerced treatment can also lead to resentment, which can also be counterproductive.
Monitoring needs to be the least intrusive while being sufficient to promote any positive behavior changes needed in the parent of interest, enhance the confidence of the Court and the other parent, and reduce parental conflict.
The Court has a broader view of its own processes and timeframes, and of the availability of individuals to monitor and respond to drug monitoring evidence as it emerges, than the expert does. The Court also has a broader view of the case than the expert is likely to have obtained in a brief evaluation. The expert’s recommendations may not be consistent with the Court’s broader views. Consequently, the recommendations might be altered (e.g., longer or shorter monitoring, more or less intense monitoring, different methods of monitoring, different payment plans for monitoring, etc.). Nevertheless, some form of monitoring is commonly needed.
If you are interested in working with Dr. Horvath, whether it be for an addictive problem, or a substance use evaluation for family court, please don’t hesitate to reach out. We are here to help.