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At some point in any hotly disputed custody case your bad habits are going to be an issue. By my estimate

Between 20 and 50 percent of all contested custody cases involve exploration of one or both parties’ alcohol, drug, and/or smoking habits

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I’m going to start with smoking because many people consider it an innocuous habit. I agree with those people as a matter of principle because smoking is rarely something an individual picks up in adulthood. I continue to be amazed at how many parents met the other parent when they were smoking like a smudge pot but now their smoking is an issue.

Generally, as soon as parents are in the throes of a separation bad habits such as smoking become major hygiene and child safety issues. Yet irrespective of that phenomenon judges and custody evaluators are making a parent’s propensity to smoke cigarettes a bigger and bigger and bigger issue each year. Last year a judge whom I believe had been a smoker went on a rant about “second hand” smoke. While it was a polite and will moderated rant, it was a rant all the same.

What brought the issue of cigarette smoking’s increased relevance in custody cases to head for me was a simple question. Someone asked me “will I lose custody because I smoke?” Ten (10) years ago, I would have told them that they were crazy to ask such a question. Now? I would tell them that all things being equal, the person who was a cigarette smoker would be at least 1 point to their detriment

Drugs and alcohol have been an issue in custody cases for so long as there have been custody cases, drugs, and alcohol. Societal judgments regarding what is, or is not, a healthy habit regarding drugs and/or alcohol may change. Yet it will always be an issue.

I have observed drug and alcohol habits as more frequently an issue between unmarried or never married parents. There are a couple of factors that might explain that disparity and I point it out absent judgments on marriage and childbirth. I only wish to advise you that these bad habit types of evidence and testimony are more frequent in non divorce custody disputes.
Testing for drugs and alcohol has changed the game in custody cases. Testing for alcohol not has a 90 hour look back history. In years past unless somebody showed up actively drunk, there was simply not reliable testing. With respect to chronic use of alcohol blood tests were always a little helpful but elevated liver enzymes can be a explained away.

The expense of even the most sophisticated testing has made a huge impact in custody cases. Urine testing for drugs and alcohol can now be administered at a local lab for thirty (30) dollars or you can buy a test kit at CVS for twenty (20) bucks. Not long ago a hair follicle test was an FBI crime lab…CSI sort of thing. Now, for a few hundred dollars you can get one done.

Bad habits are not limited to smoking, drugs and alcohol. I have seen cases where pornography, shopaholism, voyeurism have all been brought up in court. Recall Luke 12: “(W)hat you have whispered behind closed doors, will be shouted from the rooftops.”

Tim Conlon, Esquire for The Custody Place

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