Substance Addiction or Abuse and the Family

What should you do if you realize that your spouse or ex-spouse is abusing or addicted to alcohol or drugs? Options for a family in transition are collaborative practices or traditional litigation when substance addiction or abuse is an issue for a family. Both options are discussed below.

As long as all parties and children are safe, it is possible to use collaborative law services if the spouse or ex is in therapy/rehab and sober for a period of time.  The person needs time to learn healthy coping skills and to feel emotions again.  Such skills are needed to engage in meaningful negotiations.  This person should also have a strong support group: an attorney, a coach, a therapist, and family/friends.

There are several benefits of using collaborative practices, however one benefit that has been important to clients is that the drug use (past or present)will not become public (but if there is a pending criminal case it is already public) and thus is less likely to jeopardize the persons employment. It is also less likely to cause the person to be defensive which may interfere with their recovery.  The collaborative approach will help the parties to create a visitation schedule that allows the party with the addiction to heal and continue a relationship with the family and child/children. Team members and professionals can help the parties to determine boundaries and goals that will help facilitate a safe and meaningful relationship with children.

Often in family litigation, if this situation arises, visitation is suspended. No time is used to develop a plan to help repair the family. This can hurt the parent and the child/children.  But in a collaborative setting,  a professional counselor and child coach can help the family deal with the substance issue and help create an agreement, whether its temporary or permanent, that can help the family through this difficult time.

Sometimes, the disease of addiction is such that a parent is not fit to be around family or children.  If this is the case, an intervention can be planned or hospitalization or inpatient treatment should be evaluated.  When a person is not fit to care for themselves, the family, or children, the collaborative process should not be initiated, but if so it should be suspended or altogether stopped.

If the collaborative approach is not acceptable to both parties or is not safe because the drug use is current and the person is not able to make decisions, the traditional adversarial system (litigation) should be considered and used.  Typically in litigation, an emergency motion to modify visitation and/or custody is filed with the court.  A hearing date will be selected by the party or attorney filing the emergency motion.  On the initial hearing date, the court needs to decide if the issue is an emergency.  If the court deems the issue an emergency, the court will proceed that day on the hearing on the petition to modify and enter a temporary order and then set the matter for a hearing date when all parties can be present. The temporary order may modify the visitation schedule, suspend visitation, or require supervised visitation.  If the court does not deem the issue an emergency, it will not enter a temporary order, but rather it will enter an order that sets a future date to hear the petition to modify.  If a criminal case is pending, the court may decide to set the hearing on the petition to modify at a later date when the criminal case is either resolved or at least under way.  Criminal cases can take a long time to resolve, a temporary order may be entered subject to the outcome of the criminal case.

When addiction or substance abuse affects the family unit, it is best to consult with a professional so that you can determine what needs to be done to protect your family and children.

Erin N. Birt

Attorney, Collaborative Lawyer, Mediator

The Law Firm of Erin N. Birt, P.C.

2021 Midwest Road, Suite 200

Oak Brook, IL 60523

Tel: 630-705-5290


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