Parental rights and responsibilities and substance abuse

Addicted parents

Addicted parents – balancing rights with responsibilities

With every right comes a responsibility. In no sphere of life is this more true than when it comes to parenting. Do parents have a right to see their children? Yes, they do. But the rights and best interests of the child take precedence. There are circumstances in which, sadly, it is not in the best interests of the child to be around a parent. A parent may be abusive or violent towards the child or the other parent. They may have an emotional disturbance that renders them unstable and unfit to care for a child. In this case a supervised visit may be indicated. Or they may have issues with addiction or substance abuse. A parent who is intoxicated or under the influence of drugs may present a danger to a child. Addicted parents should not be allowed to be in charge of the child’s care.

Children who grow up in a home with an addicted parent may experience a variety of emotional and developmental delays. Parental drug use and child neglect often go hand in hand. Children who grow up in a home with parents addicted to drugs or alcohol are three times more likely to suffer physical, sexual and emotional abuse, according to Dr. Todd Thatcher, Chief Medical Officer at a community mental health clinic in Utah (USA) and an expert in forensic psychiatry, general psychiatry, and addiction medicine.

Removing a child from the care or presence of an addicted parent may sound obvious and uncontroversial, but the challenge comes in gathering the evidence to prove that inappropriate drug and/or alcohol use is present. If the outcome of such an investigation denies or limits parental rights and responsibilities, the process must be scrupulously fair and as accurate as can be. Otherwise a parent could unreasonably be denied contact with their child. 

Legal framework

Our rights as citizens are guaranteed in a number of pieces of legislation. First and foremost, our Constitution ensures our right to privacy, autonomy, freedom of religion, and the other rights contained in the Bill of Rights. It includes children’s rights and guarantees the equal enjoyment of rights and privileges, with limitations duly noted (e.g., during the height of the Covid-19 pandemic, the right of assembly and of freedom of movement was limited in the greater interests of public health and safety).

The Children’s Act 38 of 2005 makes comprehensive allowance for the best interests of the child. It appoints the High Court as the guardian of all children in South Africa and empowers it to pronounce on the “child’s best interest” standard. This standard includes cases of parental responsibilities and rights where the parent or parents misuse substances, potentially disqualifying them from having contact with or care of their children.

If there is a conflict between the adult parent’s right to be with their child, and the child’s best interests, the child’s interests will win every time. The law protects us all, but it will always protect the most vulnerable in our society first.

Diagnosing misuse

Sadly, cases of alcohol and drug abuse that result in disputes about parental rights and responsibilities are on the rise. Two years of living under a state of disaster has taken its toll on mental health and, inexorably, substance abuse has increased. It’s inevitable that some of these cases will involve parents. These usually come before the Office of the Family Advocate and often involve one parent’s attempt to deny the other parent contact. The judge has to balance the likelihood that the allegation of substance abuse is authentic with the possibility that the parent is acting out of spite and just wants to deny the other parent access to the child. Therefore, there are various diagnostic methods used.

Medical ethics

Medical dramas on television make drug testing – the “tox screen” – look straightforward. It is not. Some substances are perfectly legal, e.g. alcohol and cannabis. The presence of alcohol above a specified limit is sufficient to make driving a vehicle illegal, but how do the courts decide when it makes someone an inappropriate parent? Many parents drink socially and are still perfectly capable and responsible parents. Alcohol misuse is determined by liver enzyme induction tests, which signify the build-up of toxins over time. Drug use is detected with “markers of exposure”, which measure the amount of the compound present in the body after consumption. Hair is a particularly useful bodily substance to test because drugs and alcohol are taken up in the hair, due to its continuous contact with the blood. Hair analysis provides a history of drug use and allows consumption over time to be analysed, due to the growth rate of hair.

Other screening tests are less reliable, because the margin for error – both false negative and positive – is too great. Medico-legal experts argue that confirmation analysis must complement any screening test, or the use of screening results as evidence in court actually constitutes a breach of medical ethics and possibly medical malpractice.

Addicted parents – a holistic approach

Ultimately, a parent’s fitness to exercise their parental rights and responsibilities must be based on more than a medical test report. It is important that the Office of the Family Advocate carry out a complete review of the parent’s history, including medical and psychiatric information, and social functioning. A social worker or psychologist will usually be asked to perform an assessment, possibly on the home environment as well as the parent’s mental state. Certain standardised instruments such as the Michigan Alcoholism Screening Test are also reliable when alcohol abuse is investigated.

Are you affected by any of these issues?

If you are concerned about the ability of your co-parent to look after your child due to alcohol or drug misuse, or if you feel that you have been wrongfully accused of being an addicted parent, give Simon a call today. At SD Law, we are family lawyers with offices in Cape Town and Johannesburg. We are not medico-legal experts. But we have access to highly trained specialists in this field who work with us on complex cases, particularly where child care and contact is concerned. We will protect your rights and responsibilities as guaranteed under the Constitution. But our overarching priority is the safety and welfare of the child. Contact family lawyer Simon Dippenaar on 086 099 5146 or email to discuss your case in complete confidence. 

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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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