Another common tactic during the divorce and custody process are the false allegations of substance abuse. While perhaps not as impactful as false allegations of domestic violence, child abuse, or sexual abuse – they should still be vigorously defended and taken seriously. Again, for a comprehensive list of tips, visit the Protecting Yourself Page. We’ll discuss a few more situation-specific ideas right here.
So comes the false allegation that you are an unfit parent because of drug abuse and efforts are made to minimize your role in the children’s lives on that basis. Just like all of the other experiences you’ve had in this situation up to this point – this one will also require careful planning, meticulous record-keeping, and a desire to defend yourself with minimal costs and maximum effectiveness.
At the outset, you must consider (and we assume) the following circumstances may already be dramatically in your favor. They are:
- You don’t use illegal drugs. Any tests you take are guaranteed to be clean unless they are a false-positive.
- You don’t abuse alcohol. It’s legal and your use is in moderation. You have no DUI arrests or convictions. You have no arrests/citations for public drunkenness.
- You have asked for or have been offered extra time with the children between the start of legal proceedings and the time of the false accusation – and you have taken it. Or, during the marriage, you had moments where you were 100% in charge of supervising the children while your partner was away on business or a vacation or similar.
If you’ve read any of the other pages under the “false allegations” category, you realize that few things can side-track or completely unravel a “straight-forward” custody case quicker than this. In a worst case scenario, if falsely accused of sexual abuse (particularly of a child) – your entire life can be ruined in a matter of days. No matter the false allegation, you’re automatically put in a defensive position. Regardless of the question, all answers are suspect.
Before we go any further, the first thing you should do after being accused, is to submit yourself to a drug test, preferably a hair follicle test, immediately. This will negate arguments that you waited until substances were out of your system to agree to take a drug test at a later date. Do it at your expense, just do it. You can ask to court to have your ex reimburse you for filing false allegations, but it’s worth it even if this request isn’t granted. Showing up in court with a clean drug test right from the get-go will have a significant impact!
Now is the time to take preventive measures to ensure that you don’t give the court any reason to doubt the veracity of your story. Light, occasional use of alcohol should even be curtailed and relegated to just your home, if even then. Turn down invites to go watch the sporting event at the local bar with friends. Turn down invites to holiday parties (or, at the very least, avoid drinking even a single cocktail or beer at such events). Assume that a private investigator will be following you and recording every move you make. Notice, I didn’t say “false move you make.” A photograph can be just as easily twisted into something it’s not as the written or spoken word. Don’t give them reason to snap a shot of you tipping back a long-neck, even if it’s the only one you had.
As an example, in my very own case, a question came up regarding substance abuse/use history. Of course, “Jane” – a binge drinker and offspring of a family where alcoholism has affected multiple family members – lied and said she’s never abused any substances. In her case, lying was the smart (and usual) play for her. Nevermind that I carried her, as she was too drunk to even stand-up, into the house on more occasions than I can count. Me? I answered (the custody evaluator) honestly, speaking briefly of occasional marijuana use that occurred over a decade earlier, most of it much longer – dating back to my late teens and early 20s. Nevermind that since then, I held very important positions in a few companies. During one of them, I lead a comprehensive safety program where I was the administrator of the drug testing program. Nevermind that I had passed regular employment drug screens over the course of 20+ years of employment. My honesty regarding days long-past showed up in the report along with a “recommendation for father to enter into a drug treatment program.” We won’t get into the details of the evaluator’s bias, but let’s just say that her spin and recommendation were absurd. Occasional recreational use that had occurred a lifetime ago will be read by court authorities as “S/HE’S A SUBSTANCE ABUSER! TAKE THE KIDS AWAY!” I fought and overcame all of the false allegations “Jane” made to date.
Others, like in the following short story, just throw in the towel right away and end up with minimal parenting time with their child. The father was accused of being a drug dealer. He had never, ever dealt drugs, though was again, a long-ago recreational user of marijuana. His ex-wife would pull out all of the stops to ensure this father didn’t have much custody of their child. She had a friend come to court prepared to testify that he sold this friend drugs regularly. Despite it being false… and despite it being unprovable… this man wasn’t prepared to deal with what he faced and, sadly, just gave up right then and there. He didn’t have the money for a protracted legal battle and felt that the court bias against fathers was bad enough without the specter of a “drug dealer” label being tossed into the mix. He agreed to take minimal custody. Twenty years later, the child of the substance abusing mother has substance abuse and criminal troubles of his own and is serving time in prison.
I still talk with this man today. He did try to fight for greater custody over years and was stifled at every turn. Still, it sickens him every day to realize that the woman who cheated on him, with his best friend so long ago, fought so hard for the opportunity to drive him out of his child’s life and then proceed to destroy his child.
Back to the matter at hand…
Time is on your side when the false allegation of substance abuse rears its ugly head. Time will expose the false allegation for what it is – your ex is a liar and no lie is too great to try and separate you from the children. When you deny the charges and defend yourself vigorously, expect that the court will order regular, recurring drug testing. This is perfect for you. Accept this, but on your terms. As you have no obligation to “prove your innocence” and the accuser must substantiate their claim, we recommend a minimum of twice-monthly random drug testing and the testing is to be paid for 100% by the accuser – your ex-partner. They made the allegation, so impress upon the court that it will be their responsibility to bear in proving so. Also, request they must submit to the same drug testing of themselves if you believe they may be projecting their own drug issues onto you. In this case, I would ask the court that you both pay for your own testing.
Your agreement establishes two important points:
- You are being honest and forthright. You are absolutely not a substance abuser. You will be very willing to take drug tests.
- Your ex-partner is a liar and they will have to pay for the honor of proving to the court that they are a liar.
You have agreed to their decision to prove themselves liars and discredit them. Further, as the program regimen is part of a court-order, your ex will be required to pay for the drug testing which can cost as much as $200/month (or more depending upon the type of testing). The drug testing facility will be required by the court order to continue to give the testing. The only way for the testing to stop is for your false-accusing ex-partner to initiate another expensive court proceeding to stop the court-ordered drug testing program. Again, doing so is necessary and undermines their false-allegation.
You have just proven your ex to be the liar in these proceedings, at their expense. What’s particularly gratifying about this situation is now every outrageous allegation that they make becomes very suspect. It is with this information and experience that you impress upon your attorney and/or the court that this person will go to great lengths and make such allegations frivolously unless they are punished for doing so. It is absolutely in your child’s best interests to spend the lion’s share of time (if not full custody) with you. The proof is in those months of test results completely supporting your claims.
In many cases, a GAL (guardian ad litem) will be appointed to represent the child’s best interests. As an advocate for the child, the GAL has the responsibility of investigating the allegations to a certain extent and, based upon their investigation and observations – make a recommendation to the court. If you’re clean and have demonstrated so, and you are a responsible, involved, and caring parent – expect that the recommendation will go accordingly. There are, by no means, any guarantees. However, if the issue is substance abuse and that allegation hasn’t been substantiated, it’s reasonable to expect that a qualified, independent advocate for the children will not make a recommendation that is detrimental to the children or you.
If, at the outset of the allegations and subsequent investigation necessitated a change in custody temporarily, part of this process is going to be to make sure that you make that order as short in duration as possible. You and your legal team should be working towards that end as quickly as possible. Once you’ve established a track record of clean drug tests, even as soon as the very first one, you need to impress upon the court that until such time as the false allegations are proven true, neither you or the children should be punished any longer. The longer a “temporary” order is in place, the greater likelihood it has of becoming a “permanent order.”
The second order of business would be to ask the court to impose sanctions on the false-accuser. Don’t expect miracles! Over the course of 5-years, I was falsely accused of countless things, all found to be unsubstantiated, and “Jane” never received a penalty for any of it. Push for a contempt-of-court finding. Push for a steep fine. Definitely push for the maximum possible custody time for the children. If your vindictive ex is willing to take false accusations to court, one can only imagine what kind of poison they are feeding to the children in terms of what you have allegedly done (and never have). Get these key issues out in the courtroom and force them to consider them and decline your requests in the record.
Revisiting suggestions and making some new ones:
- Express concern about the temporary visitation schedule and offer to help in any way you can. That would include volunteering to undertake drug testing on the terms detailed above. Express these concerns to the court and, if one is assigned, the guardian ad litem.
- Express that you are not angry about the situation, but confused and concerned that the ex-partner would make the false allegations and that she could be expressing the same (or worse) to the child and damaging your relationship while the investigation is ongoing.
- Always reiterate and demonstrate concern for the well-being of the child. You are justified in doing so. Your focus should always be about getting reunited with the child and obtaining the maximum amount of custody time. Be sure that the court and GAL can’t forget that.
- Suggest to the GAL and the court your willingness to take the twice-monthly drug tests at the accuser’s expense until the child turns 18. If the accuser balks at such a suggestion, that will be the first tip of the iceberg in proving your innocence and shine a blinding spotlight on the motives of the accuser.
- Document everything! Dates, times, who you were with, what you were doing – they will all go a long way towards showing the court that you are on the up-and-up.
- Organize and prepare any documentation or other provable evidence that you asked for or were offered extra time with the children and that you accepted it. After all, why would the false-accuser give the alleged substance abuser extra time with the children if it were true?
Again, this is not an all-inclusive list, but combined with the long list of recommendations on the “Protecting Yourself” page and ongoing discussions in our forums, you should have a clearer picture of your defense options when such allegations surface.