If you’re divorcing a spouse and co-parent with a substance abuse problem, you likely want them to remain in your child’s life (assuming they aren’t abusive or violent), but you want to limit their custody for the safety and well-being of your child. If your spouse is one of the many alcoholics and addicts who don’t acknowledge that they have a problem, you may need to prepare for a court battle.
You probably have numerous stories of times when your spouse neglected or harmed your child (even if unintentionally and unknowingly) because of their substance abuse. Your word alone, however, won’t be enough to limit your spouse’s access to your child. In divorce, accusations can fly back and forth, but if there’s nothing to back them up, a judge can’t make sound decisions based on them.
What kind of evidence do you need?
You need evidence that’s admissible in court and also relevant to your case. If friends or family will testify that your spouse has put your child at risk because of their alcohol and/or drug use, that may be allowed. However, it’s best if you can get testimony from a more neutral witness. Further, “hearsay” evidence, such as something you were told by your spouse’s co-worker, wouldn’t be admissible unless they’ll testify to it.
Further, if you have evidence of your spouse’s substance abuse but not as it relates to their parenting, that may be considered irrelevant. For example, if they got a DUI driving home alone from work, that may not be deemed relevant to their fitness as a parent. If they got a DUI while your child was in the car, that’s another matter entirely.
Unfortunately, it sometimes takes a serious situation to create a “paper trail” that can be helpful. If your spouse has been arrested multiple times for public intoxication or police have visited your home after neighbors reported hearing a fight, for example, this kind of evidence can add up to something that would concern a judge.
What if you have recordings?
Minnesota is a “one-party consent” state. That means you can record your interaction with someone without their consent. However, you never know how a judge is going to react to you recording your spouse as they drunkenly berated your child, for example, rather than stepping in to stop it.
Divorcing a spouse with a substance abuse issue – particularly when there are children involved – can be one of the most difficult things you’ll ever do. It’s critical to have sound legal guidance from the start.