Denial is a Bad Strategy in Family Court.

 

Change is hard.  Part of the difficulty with change is the human tendency to justify bad habits.  It is human nature to react defensively when someone criticizes or judges our unhealthy habits.

As Hunter S. Thompson once wrote, “A word to the wise is infuriating.”

At times, people going through divorce or custody issues self-medicate with drugs or alcohol.  The act of self-medicating can become a habit that becomes progressively problematic and difficult to break.

Allegations of substance abuse are common in custody disputes.  These claims are particularly common in cases where one parent has a history of drug or alcohol related offenses.

Most Judges are understanding about substance use and addiction problems.  Most Judges understand the pervasiveness of use and abuse in New Mexico.  With that said, Judges also tend to believe that the road to recovery begins by acknowledging the problem and seeking treatment.

Judges also have a duty to protect children.  Based on the unique facts of each case, Judges generally do their best to ensure that the children are protected. Often, this duty requires the Judge to make decisions that error on the side of caution.

Some Judges are more conservative than others, in relation to substance abuse and the use of “mind-altering substances.”  Nevertheless, Judges generally aren’t interested in punishing parents for having a beer on Friday – or non-abusive alcohol consumption.  Instead, most Judges are interested in excessive drinking levels and problematic behavior that results from excessive drinking.

Given a Judge’s duty to protect the children, denying that one has a substance abuse problem is a bad strategy.

The first problem with using denial as a strategy is the fact that substance abuse issues can be readily tested.  This statement doesn’t only apply to drugs.  Alcohol consumption can also be readily detected by administering a PEth test.

Drug use is readily detectable through a six month hair follicle test.

Both tests are routinely ordered in cases where one parent raises the issue of substance abuse.  In other words, if your ex raises the issue of substance abuse – your Judge will likely order an alcohol or drug test.

Generally speaking, Judges view the act of denying a problem as being a bigger issue than the problem itself.  You will lose credibility in your Judge’s eyes by denying a problem – with test results that actively disprove your denial.  I cannot overstate the value of maintaining credibility in an area of law where Judges have immense power to determine a child’s best interests.

You tend to lose credibility in all areas – when you lose credibility in one area.

On the other hand, you gain credibility by acknowledging that you have a problem and seeking treatment before a Court Order requires you to do so.  Judges tend to respect the difficulty of admitting one has a problem, and seeking treatment.

Denial is also a bad strategy because it wastes precious time.

From the date that a Motion is filed to address custody or time-sharing, it usually takes about one to three months before a hearing is held.  During this time, one can either choose to accept and address substance abuse issues – or move forward with the strategy of denial.

At the initial hearing, if substance abuse issues are raised, it is highly likely that a drug or alcohol test will be ordered.  It generally takes about one to three months to get back into court.  In the meantime, the Judge will generally lean on the side of caution – particularly when one has a history of past alcohol related offenses. In this situation, Judges generally take a cautious approach and will enter a temporary time-sharing schedule that is designed to protect the child, until a negative test result is received.

One is forced to admit a problem, when the test result ultimately comes back positive. At this point it is likely that some form of treatment will be required.

Based on the time that this process takes, the act of denial generally results in about three to six months of wasted time – sometimes more.  The strategy also results in lost credibility/trustworthiness that can take months, if not years, to rebuild.

Judges are also concerned with “minimizing” statements and behavior.

“Minimizing” is a type of deception that involves denial that is blended with rationalization.  Minimizing generally occurs in situations where outright denial isn’t possible. For instance, a person might minimize the results of a drug and/or alcohol test – claiming that the substance is only used occasionally – when the results demonstrate otherwise. Similar to outright denial, minimizing tends to cause Judges to question one’s credibility and trustworthiness – which can be exceedingly harmful in an area of law where the Judge has immense power to determine the child’s best interests.

Take a moment to consider your child’s safety from a Judge’s perspective:

Here is a thought experiment to consider:

Imagine that you are interested in hiring a baby sitter.  While considering the sitter’s ability to care for your child a friend tells you that the prospect has a drug and/or alcohol problem that places your child in danger.

Given this information, would you hire the sitter?

Would you request additional information – such as a drug test – to determine if your child was safe with the sitter?

Would you trust a potential sitter that made denials of drug or alcohol abuse – and the test proved otherwise?

When making the final decision would you error on the side of caution – looking for another sitter – or would you error on the sitter’s side and assume that your child will be safe?

New Mexico law presumes that joint custody is in the child’s best interests.  Judges want both parents to be actively involved with the child.  Ultimately a Judge’s goal is for parents to share joint custody.  Nevertheless, Judges weigh the desire for joint custody with the competing duty to protect the children involved.  This balancing act generally causes Judges to error on the side of caution.

I commonly encounter situations where clients deny drug and/or alcohol use.  After the test results are received, I discover the issues at the same time as the assigned Judge.  In these situations, I am prevented from guiding my clients towards the most proactive means to address the situation.  I am prevented from presenting the most favorable case to the Judge.

I would imagine that it is awkward and potentially embarrassing to discuss substance abuse issues with your attorney.  Nevertheless, based on my experience, it is both awkward and detrimental to first discuss a positive drug test — with your assigned Judge – 3-6 months after denying the issue with your attorney.