Depp v. Heard: Takeaways for Child Custody Matters Involving Substance Use and Abuse

May 19, 2022

Depp V. Heard Details the Very Real Allegations and Issues of Severe Substance Abuse

For the past few weeks, news outlets and social media platforms have been abuzz discussing the celebrity trial of the current moment — Depp v. Heard — which is currently playing out in Fairfax County, Virginia. From a legal perspective, the Depp v. Heard trial is a defamation lawsuit initiated by actor Johnny Depp against his former spouse, actress Amber Heard.

As the trial has been open to the public — and, in fact, publicly broadcast via CourtTV and other streaming services — the ongoing legal proceeding, which has, to date, included testimony from both Mr. Depp and Ms. Heard, has provided a detailed look behind closed doors into this particular celebrity marriage. In this process, what has been revealed can only be described as extremely troubling, by and large, due to the virtually never-ending stream of shocking revelations about the couple and their relationship, including mutual claims of severe domestic violence and mutual substantial substance abuse. Indeed, so far, the testimony has included ample claims and purported examples of both Mr. Depp’s and Ms. Heard’s alcohol and drug abuse.

As you might have noted by now, this article has to do, in particular, with substance abuse in child custody matters. Obviously, the Depp v. Heard lawsuit is a civil lawsuit for defamation, and therefore, has nothing to do with child custody. In fact, no children were even born as a result of Mr. Depp’s and Ms. Heard’s relationship or marriage. So, what takeaways can Depp v. Heard possibly offer us as it pertains to a child custody proceeding?

The answer is simple: this lawsuit, although having nothing to do with child custody, involves many of the very real allegations and issues of severe substance abuse that often also underlie and are extremely relevant to a number of the most highly contested child custody cases. To be sure, these types of allegations and claims are extremely prevalent in any type of domestic relations matter, including divorces with no children. However, for domestic relations and juvenile courts, these types of allegations tend to take on a much different level of importance when matters of child custody are at issue.

So, what does a party need to demonstrate in order to make a compelling argument about a parent’s substance abuse to a court in connection with a child custody case? Notably, Depp v. Heard provides a helpful jumping off point to answer this question.

Providing Tangible Evidence of Substance Abuse

First, in a child custody case, mere allegations or claims by one party about the other parent’s frequent substance use and/or abuse are, typically, not sufficient evidence, in and of themselves, for a court to impose custodial limitations or stringent measures on the parent at issue, such as a complete loss of custody, supervised visitation or drug testing. This is not because these types of allegations are inherently taken lightly by a court. Instead, this is simply a product of the fact that it is extremely common for at least one party (if not both parties) to raise allegations of substance abuse against the other party in connection with a domestic relations case, be it a child custody case, a divorce case or otherwise.

To this end, it is imperative that, if a party is going to raise allegations of substance abuse in connection with a child custody case, then that party must also be in a position to provide tangible, recent evidence of said substance abuse on the part of the other parent. While direct evidence is preferable, including photos, videos, text messages, audio recordings, etc., circumstantial evidence of potential, recent substance abuse can be valuable as well. Social media can also often provide a treasure trove of helpful evidence.

The evidence that has been offered, to date, in connection with Depp v. Heard provides a great example. Indeed, along with testimony concerning the other party’s alleged substance abuse, both Ms. Heard and Mr. Depp have offered a significant amount of photographic, recorded and video evidence of the other party’s claimed substance use and abuse. While said visual and auditory evidence is not inherently conclusive, it, objectively, does provide some level of tangible support to each party’s allegations of substance abuse against the other party.

The Fine Line Between Occasional Substance Use and Substance Abuse

Second, in child custody cases, tangible evidence of occasional substance use is also, often, not enough, in and of itself, to prove that there is a disqualifying issue with one (or both) parent(s). To be sure, this is not because occasional substance usage by a parent is never problematic. Instead, the reality is that the line between occasional substance use by a parent and substance abuse is a fine and, potentially, subjective one. From the court’s perspective, the latter is often of more concern than the former.

Obviously, this is, in some ways, dependent on the claimed substance at issue as well as the quantity of the substance consumed. For example, in a child custody case, a parent’s occasional, social alcohol or marijuana use is usually not viewed by the court in quite the same way as his or her occasional use of a controlled substance, like cocaine or methamphetamine. To be sure, however, a parent’s occasional, but excessive alcohol use may be seen as just as concerning as a parent’s one time cocaine use. As such, the fact of the matter is that, just as society, for better or worse, tends to view various substances in slightly different ways, the domestic relations and juvenile courts tend to do so as well.

Once again, the evidence presented, to date, in Depp v. Heard is instructive. Indeed, both Mr. Depp and Ms. Heard have gone to great lengths to emphasize their claims that each respective party was, with some degree of regularity, using various types and degrees of different substances, both controlled and otherwise. To this end, the circumstances alleged by the parties appear to paint a compelling (and concerning) picture about the specific substances that were allegedly being used, as well as the quantities in which said substances were allegedly being consumed.

When and Where is the Substance Abuse Occurring?

Third, a court’s perception about a parent’s occasional substance use is also, in some ways, dependent on when and where the claimed substance use at issue is occurring. Indeed, if there is evidence demonstrating parental substance use while in the presence of or while otherwise caring for the minor child, this is likely to be viewed by the court in a different, more problematic light as it pertains to child custody, regardless of the substance at issue.

The same is also true with respect to evidence of a parent’s recent substance use versus that same parent’s historic substance use. While evidence of historic substance use can, of course, be helpful to support allegations of a present substance use issue on the part of a parent, it’s a simple reality that, in connection with child custody cases, courts tend to give more weight to recent evidence showing recent substance use by a parent.

Similarly, evidence demonstrating how the parent at issue is alleged to behave or act when using the substance at issue is also often relevant in connection with a child custody analysis. For example, if the concerned parent offers evidence that the other parent becomes extremely violent or volatile when using the substance at issue — or otherwise engages in poor decision-making when using the substance — this may also carry substantial weight in a child custody proceeding.

At present, the evidence presented in Depp v. Heard mirrors these principles. In fact, both Mr. Depp’s and Ms. Heard’s legal teams have offered evidence during the trial in an effort to show that each party not only has a history of substance use issues, but that when each respective party was engaged in substance use — even on an occasional basis — he or she became increasingly violent, erratic or otherwise volatile.

So, in total, what do the circumstances surrounding the Depp v. Heard case have to offer as it pertains to issues of substance use and abuse in child custody cases? In its simplest form, the following: when making allegations of substance use and/or abuse on the part of a parent in a child custody case, it’s important to present a tangible and holistic picture of all circumstances involved. Ultimately, doing so will place the concerned parent in the best position to present the most compelling case to the court.

Child custody cases which involve claims of substance use and/or abuse can be emotionally challenging and otherwise difficult for parties to navigate. That’s where we come in. If you need guidance on these or other similar sensitive issues in connection with your child custody matter, please contact Janet Stewart Scalley at JS@kjk.com or another member of the KJK Family Law Team, by phone at (216) 696-8700.