Parental Alcohol Issues in Family Law Cases

“Alcohol dependency” usually refers to a person’s physical dependence on alcohol. Dependence is characterized by the physical symptoms of tolerance and withdrawal. It is possible to have a physical dependence on alcohol without being addicted.

A person can also be mentally dependent on alcohol. This is when alcohol use is a conditioned response to a feeling or event. These feelings and events are known as “triggers.” Something as simple as the act of driving can trigger a desire to use alcohol. These triggers set off biochemical changes in a person’s brain that strongly influence addictive behavior.

When the symptoms of mental and physical dependence on alcohol are apparent, alcohol addiction is usually present.

The main characteristic that distinguishes “alcohol addiction” from dependence is the combination of mental and physical dependence with uncontrollable behavior in obtaining and using alcohol. Alcohol addiction means there is both a psychological and physical reliance on alcohol.

Addiction can be identified by a change in a person’s behavior. This change is caused by biochemical changes in the person’s brain after continued alcohol abuse. Alcohol use becomes the main priority of the addict. This is true even if there is harm to themselves or others. Alcohol addiction can cause someone to act irrationally when they do not have the alcohol they are addicted to in their system.

If a parent is 21 or older, they can legally drink alcohol. But issues arise when a parent drinks and drives alone or with their children in the car and when a parent becomes dependent or addicted to alcohol. Alcohol can also lead to family violence and encounters with law enforcement, the criminal court system, and Child Protective Services. Court intervention may be necessary if a parent allows their minor child to drink alcohol.

A parent’s recent history of alcohol-related criminal charges and convictions can be used as evidence in court. A parent or other witness can also testify about their knowledge of the parent’s drinking or abuse of alcohol. They may recall how a parent or their vehicle smelled like alcohol, if they had red, glassy eyes, were not steady in moving, or were swerving when driving. In extreme cases, they may have found a parent unconscious.

If you do not have an existing court order, you can file a Suit Affecting the Parent-Child Relationship, also called a SAPCR. As part of the SAPCR lawsuit, you must ask the judge to order protections for your children due to alcohol abuse by the other parent.

If you already have a court order and alcohol issues become present after the order has been entered, you can file for a modification of your order. As part of the modification lawsuit, you must state that the order needs to be changed to include protective measures for your children because of alcohol abuse by the other parent.

The following protective measures may be included in your court order if the other parent is abusing alcohol:

• Injunctive Relief
• Supervised Visitation
• EtG Testing
• Alcohol Monitoring Systems (Soberlink, IIDs, and SCRAM)
• At-Home Breathalyzer Tests
• OSAR (Outreach, Screening, Assessment, and Referral)
• Rehabilitation or Treatment Programs
• Counseling and Psychological Assistance

The judge may order one, a few, or require all of these protective measures to be in place. No orders are exactly the same, so know what your own order says. It is essential to talk with a lawyer if you are concerned about your child’s safety with the other parent.  

A judge can make orders enjoining, or not allowing, a parent to drink alcohol for a specific time before or during their visitation period with the children. This is known as injunctive relief. This order could be in the form of a temporary restraining order or a temporary order. This is common when the need to protect the children is in an emergency or urgent.

If the judge is concerned about the safety of a child with a parent who is abusing alcohol, the judge can order that parent’s time with the child to be supervised. The supervision may be by a family member, a neutral third party, or an agency. Usually, the parent who has supervised visitation must pay for their visitation fees. You can find a directory of supervisors and agencies at Supervised Visitation Directory and Supervised Visitation Network.

A judge may order supervised visitation with or without alcohol testing, as described below. Sometimes, a parent’s visitation, whether supervised or not, may depend on showing negative tests for alcohol use.

Although rare, a judge may also order that a parent have no visits. This option is used when any visitation between the child and their parent, even with supervision, would be physically or emotionally harmful to the child. 

The ethyl glucuronide (EtG) test is used to determine if a person who is not supposed to be drinking has consumed alcohol. The EtG test for alcohol use is used to detect the presence of ethyl glucuronide, a breakdown product of ethanol, which is the intoxicating element in alcohol. The EtG test is most often used with a person’s urine, but some tests can also screen for EtG in samples of a parent’s blood, hair, and nails.

A family law judge may order that a parent take an EtG test before or during their visitation with their child. Sometimes, a judge may order that a parent may not get to have their visit if their EtG test is positive for alcohol use. Terms in the order must include how often the EtG testing must be done, where the testing takes place, which parent is responsible for paying for the EtG tests, what happens if the EtG test is positive or if a parent attempts to alter test results (cutting nails, dying hair, using another person’s urine), and who has access to the EtG test results, because of laws protecting private health information. These EtG test results can be shared with the court but must not be filed as part of the case’s public records.

 Alcohol monitoring refers to using a tested device to observe, detect, and record one's blood alcohol. Many courts order a parent to use a remote alcohol monitoring system before, during, or immediately after they visit with their child. This is so the court can ensure a parent is not drinking when their children are present. If a parent has been convicted of repeat drinking and driving offenses, they may also have court requirements from their criminal case to use an alcohol monitoring system.

A family court order that requires a parent to use an alcohol monitoring system must also include how often and for how long a parent must test, who pays for the monitoring system, who can see the results, what happens if the test is positive or if a parent attempted to alter the results (for example, having another person test in their place). Like with the EtG test results, laws protecting private health information do not allow these results to be shared as part of the court's open record.

One such alcohol monitoring system is Soberlink. Soberlink is a wireless breathalyzer that automatically documents proof of sobriety in real time. Soberlink has facial recognition technology, can detect physical tampering with the device, sends reminders and alerts for the parent to test, and has automated reporting of the results. Soberlink has a device that can be used alone, or there is a device that can be connected to your smartphone. Soberlink's monitoring plans allow for testing based on when a parent will have their parenting time or daily. You can check the Soberlink website for pricing.

Another alcohol monitoring system is an ignition interlock device (IID). This device is an in-car breathalyzer that measures the amount of alcohol in a parent's breath. The interlock prevents a parent from starting their vehicle until a breath alcohol test is taken. Other terms you may see are "in-car breathalyzer," "car interlock," or "blow and go." If a parent has a drunk driving offense, such as a DUI or DWI, a common requirement from the criminal courts is for the parent to install an interlock on their vehicle. Many Texas companies sell IIDs and offer customer service to the parent who is ordered to use interlock. Make sure you are aware of the cost of installation and monitoring fees. Currently, the national average is roughly $3 per day.

Another type of alcohol monitoring system is the SCRAM bracelet or ankle alcohol monitor that the parent wears. The SCRAM device tests a parent's sweat every 30 minutes, 24–7, to determine their blood alcohol concentration. There are installation and monitoring fees associated with a SCRAM bracelet, and you can find providers near you on the website. If a SCRAM bracelet is removed, the monitoring center or company will be notified immediately.  

Chain stores like Wal-Mart, Walgreens, and CVS sell at-home breathalyzers to test a parent’s breath for the presence of alcohol. Even though these tests are more convenient (you can test anywhere and anytime) and a cheaper way to test for alcohol use, these types of tests may be unreliable. This is because they can only estimate a parent’s alcohol level. These at-home tests also may require batteries, mouthpieces, and other supplies that, if missing, may interfere with a parent’s ability to test. Still, family law judges can and will order a parent to take at-home breathalyzer tests if alcohol has been a problem and child safety is a concern. 

Much like EtG testing, the court order may require at-home testing before or during visitation with the child. The judge may also order that a parent may not get to have their visit if their test is positive for alcohol use. Terms in the court order must include how often testing must be done, which parent is responsible for buying the tests, what happens if the test is positive or if a parent has tampered with the test, and who has access to the test results. These test results are protected health information. They can be shared with the other parent and judge but must not be filed as part of the case’s public records.

A judge may order that a parent submit to an "OSAR" (outreach, screening, assessment, and referral). OSAR is available to anyone interested in information about substance use services. Anyone who wants to know about drug and alcohol help can use OSAR. It can help people who don't know where to start to find help. The Texas Health and Human Services website has information about OSAR.

Some family courts may order a parent to complete a rehabilitation or recovery program before they can begin exercising their visitation. Some programs are called outpatient programs, meaning the parent goes each day to receive services but can return home at night. Other programs are inpatient programs, meaning the parent checks in and stays there until they complete the program or choose to leave. Often, the right treatment program will be based on a parent’s location, budget, and specific needs. These programs can be good for a parent if the parent is also struggling with their mental health or has a physical or mental disability. 

If the judge orders a parent to complete a rehabilitation or recovery program, then the order should contain terms about:

• how long the program should be (for example 30, 60, or 90 days),
• whether the parent must complete the program,
• what happens if the parent leaves before finishing the program,
• whether the parent can have any type of electronic communication with their child while they are in a program, and
• who pays for the program.

Some insurance policies will pay for these types of recovery programs, but the program may be an out-of-pocket expense, so the judges should consider a parent’s financials.

Many family law judges order counseling for a parent with an alcohol addiction or dependency. Sometimes, the counseling may go hand in hand with a rehabilitation/recovery program or another protective measure. Since alcohol dependency and addiction can affect a parent’s mind and mental state, counseling can be helpful for the parent to re-learn appropriate and safe behaviors so they can see their children. Counseling services can sometimes include a psychological or psychiatric assessment. 

If your court order has a counseling requirement, then the order should also include who the counselor is, how often the parent should attend, what happens if the parent stops going, who pays, and if the other parent or another person can confirm the parent’s attendance at counseling. Mental health records are protected health information, so the counselor should not be able to share what is said at counseling with anyone else unless they are court-ordered to share. 

If any minor child has been affected by a parent’s alcohol issues, then it is also common for a judge to order the child to go to counseling, too. The same considerations for an order requiring a parent to go to counseling should also apply to a child’s counseling.

A parent who has struggled with alcohol should talk to a lawyer about protecting their parental rights and what is in the best interest of their children. Taking any of the protective measures above as steps to protecting your child will go a long way in the eyes of the court.

You can visit the U.S. Department of Health & Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) website for more information.

The mission of Mothers Against Drunk Driving (MADD) is to end driving while intoxicated, support the victims of these violent crimes, and prevent underage drinking. If you or your children have been victims of drinking and driving, MADD can provide immediate services that can continue post-conviction or years after a case has been over. MADD provides the services listed below. 

At the national level:

• MADD Hotline 24–7, 877-MADD-HELP (877-623-3435) 
• Public Facebook page https://www.facebook.com/MADDTexas/ 
• Private Facebook page for peer support 

At the local level:

• Support and assistance for victims and survivors: (512) 445-4976, extension 4851
   
  • Emotional support 
  • Criminal justice process and court proceedings 
  • CVC Counseling resources 
  • Referrals to local community resources meeting various needs 
  • VIS 
  • Court accompaniment Literature and books 
  • Memorial markers after adjudication 
  • Virtual support group 
• Services are offered for as long as there is a need.
• Letters to the parole board or accompaniment to parole hearings.
• Victim and survivor support for community partners 

See the MADD publication Preventing Substance Impaired Driving and Child Endangerment. Anyone, whether they are a concerned citizen or parent, can read about how to protect children from child endangerment and yourself from impaired driving.

To find a MADD service area and get help, call their 24-hour victim helpline at 877-MADD-HELP (877-623-3435).