Going through a custody case is harrowing in the best circumstances (is that an oxymoron?) but it’s even worse when your soon-to-be ex is an alcoholic or struggles with substance abuse issues.
And you know what’s worse than that?
Knowing he’s an alcoholic but without having information or evidence to back it up.
You’ve seen the bottles. You’ve experienced the rages. You’ve watched him slur his speech, struggle to walk, or wet the bed. You’ve been embarrassed out in public or always stayed sober yourself so someone could drive you both safely home. Your life has been ruled in so many ways by his addiction and now – for this and probably for many other reasons as well – you are done.
But alcoholism, and addiction in general, are often covered up. The addicts themselves deny that they have a problem at all and avoid treatment for years at a time. They follow predictable patterns, but it might not be as obvious to other people as it is to you.
There may not be evidence that you can easily show your lawyer or the court. He may never have been to rehab. May never have attended an AA meeting. May never have even attempted a period of sobriety. May never have gotten a DUI or a drunk in public charge. May never have seen a doctor or even admitted it out loud to anyone – you included.
This is probably the worst-case scenario because, obviously, if you had something, the court would be more likely to regard your concerns seriously. If we knew he had a DUI, then that would have very common sense and obvious implications for custody.
Without evidence, though, it might seem to the court as though you’re making a mountain out of a molehill or that you’re trying to create undue limits on his parenting time. The court likes two involved parents, wherever possible. It also doesn’t really like to be proactive by taking away parenting time without evidence, the byproduct of which is that it often won’t step in to affirmatively protect children unless and until something big happens.
Does that make you feel like your kid is a literal guinea pig?
Yeah, I get that.
But, also, it’s hard to argue – from the court’s perspective – that it makes sense to take away a parent’s parenting time without evidence. After all, taking way that time could have lasting implications for the child himself (or herself) and for the parent/child relationship. How do we convince a court to do something that serious without evidence, and especially if your child’s father is most emphatically denying his issue even exists?
It’s a difficult balance to strike, and even more difficult because you know exactly how high the stakes are. You know that he’ll be, for example, driving with the kids in the car, caring for the kids alone, and without you there to act as a buffer. Without you to step in if he finds himself in bed early, or facing specific triggers that might result in him consuming more alcohol (or whatever substance of choice) than usual. Without supervision at all. It’s not dramatic to say that the stakes could be as high as life and death, even if he’s very high functioning as an alcoholic.
So, you’re panicked. Needless to say.
What can you do?
Well, there’s only ever two options:
- You go to court and let the judge decide.
- You negotiate an agreement.
Let’s talk about it.
Go to court and let the judge decide
I don’t honestly have a lot of faith in the family court process, so I would view going to court as a last resort, especially without concrete evidence of his drug or alcohol use.
Still, though, if it’s escalating, especially in the wake of your divorce or separation or ongoing custody case, if you can’t reach an agreement on any point, if you just can’t live with yourself if you don’t do everything you can to make sure that *someone* has heard these issues and decided on them, court is an option.
It’s an expensive option and, often, a time consuming one – but it is, in fact, an option.
In court, you could ask for a couple of things.
You could ask for a drug, follicle, or fingernail test. In general, fingernails are the best at showing binge drinking and can do so for a longer period of time. If you ask for this, you should be prepared to submit to a test yourself (so stop drinking!) and you may also need to bring an expert witness in to testify about the types of testing available and why this is necessary.
You could ask that the judge grant supervised visitation, or put limits (mutual, if necessary) on drug and/or alcohol use while the children are in your care. Keep in mind, though, that a total ban on alcohol use while the kids are in your care might impact you, too. Want to have a drink at a neighborhood block party, a family wedding, or on a holiday? Forget about it. What’s good for the goose and all that, you know? Especially without evidence, the judge might not want to risk looking like she was prejudiced against one side or the other. Judges are much more likely to make provisions like this mutual, so be sure you consider the implications for your own life when you ask for it, and don’t think that you can bend the rules “just a little” at a later date. You should not, and the consequences could potentially be severe.
The judge may not be convinced, and then you’d be out all the time and money you spent, and no closer to protecting your kids. You may also make the coparenting relationship even more strained. If you’re in juvenile court, you could appeal to circuit court, but – beyond that – you have few options, unless and until something happens in the future and you have a material change in circumstances. Once there has been a material change in circumstances, you could petition the court to take action again, using whatever additional information or evidence has been generated since the last time you were in court.
Negotiating an agreement
Probably your first option, and certainly what I’d suggest before you consider going to court, is to try to negotiate something with your child’s father.
If he’s in denial, it may be a hard thing to do, especially if he feels like your suggestions are a personal attack. (And, if he really is an addict, he most certainly will feel like your suggestions are a personal attack.)
You are almost certainly going to have to make provisions mutual and make it seem like they’re just regular, normal provisions that regular, normal parents would include. A general provision prohibiting alcohol consumption while the kids are in your care, for example. No, no – not because HE’S an alcoholic. It’s just one of those silly lawyer things; they put this in all the agreements.
Maybe you can’t get away with that with, for example, the suggestion that you use a service like Soberlink to breathalyze at different points, but – maybe – if you’re willing to make it mutual he’d agree. I’d try it, though, because it’s one of the best ways to make sure that he’s safe when he’s driving.
Maybe you put in a provision that says if a breathalyzer test is failed that parenting time doesn’t happen or that either parent can request a breathalyzer test at any time if they suspect drinking. Maybe he’d still hide it. But it’s worth a shot.
One of the big keys here is to make it mutual, so it applies against you both, so he doesn’t feel he’s being singled out or that the agreement could be read as being against him. It doesn’t presume which parent has an alcohol issue, it just reflects both parents’ commitment to keeping alcohol use away from the kids and preventing dangerous situations, like driving under the influence. Not because of dad, but because it’s not in the child(ren)’s best interests to experience that, whichever parent (cough *dad* cough) is to blame.
Supervised visitation almost certainly isn’t going to happen. It’s hard enough to get when a judge orders it. I don’t suspect he would agree to it, especially not without more information. He’s probably not going to just agree.
What if something … happens?
It’s always hard to predict what might happen. I definitely suggest that, either way, you keep a close eye on the situation, including how he behaves at pick up and drop off (if you see each other).
It’s a very hard call to decide whether to not allow court ordered or agreed upon visitation and, in general, I think this is something that you should do (if you do it at all) after consulting with an attorney. However, if he shows up for a parenting exchange and he’s obviously drunk or in no condition to take the kids, document it and err on the side of caution. Maybe, at this point, you have a material change in circumstances and you can either go back to court or renegotiate your agreement, following through the same steps and options again.
Maybe, at this point, the judge will order the drug/alcohol screening. Maybe she’ll order substance abuse counseling. Maybe she’ll order supervised parenting time. It all depends on what you can prove and what evidence you have.
Maybe you record the interaction, though I’d be careful if doing so would look like you’re alienating the kids or steering the conversation in an unnecessarily aggressive way. I’d be careful, too, if your safety or the child(ren)’s safety could potentially be compromised.
Work with an attorney. Raise your concerns, as well as any information or evidence you have, with the attorney to troubleshoot issues and come up with a plan of action. It’s impossible to give general advice without specific insight into your unique situation, but take safety seriously (as I already know you do, just for having sought out this article in particular).
For more information, to schedule a consultation, or to request a copy of our custody book for moms, give us a call at 757-425-5200 or visit our website at hoflaw.com.