Houston Divorce Lawyer I have been involved in several
divorce cases where substance abuse was an issue in the case. This has taken the form
of everything from illegal drugs to alcohol to prescription pills. Most
of the time the substance abuse is more of an issue when children are involved.
When children are not involved the abuse may be a good reason for you to
divorce your spouse but the court is not particularly interested. However, when
you and your spouse are going through a custody battle substance abuse
can be a big deal.
I have heard all kinds of variations on the story of substance abuse from:
- I accidentally did some cocaine.
- The mother of my children just locks herself in her room and drinks until
she passes out and lets the children run wild unsupervised.”
- I did not have the children so I decided to go to a party. While at the
party I decided to do some meth because a friend told me it was like cocaine.
- I am taking classes and have a prescription for Adderall I did not think
it would a big deal that I took more than was prescribed.
- It was Saturday night and I had a few too many beers and on top of that
and I made the stupid decision to drive home and got a driving while impaired charge.
Where to go from here? Depending on which side of the case I am on my client
generally either wants:
- Me to minimize the damage to their case or
- Limit access to the children in someway
The question is then what evidence helps the court decide how and when
a parent with a substance abuse problem should see a child?
Substance Abuse in General
If I am representing the parent with a drug or alcohol addiction what I
tell the parent is that “everyone screws up and they may undergo
some consequences because of the mistake. However, that does not mean
they will never see their child again.” However, it could mean during
some period of time:
visitation is supervised or
- You have to undergo random drug testing in order to exercise you visitation
- Or some other restriction
However, we have helped guide parents through the
Texas divorce process who had their
access to their children limited. In some of these cases we even helped them regain custody of
the children so that they were the parent who got to decide where their
Under the law children are presumed to need both parents. A court does
not look favorably at a parent who has a substance abuse problem. However,
a court will take notice if the addicted parent takes appropriate steps
to deal with and control the addiction.
Appropriate steps does not mean:
- attending a single AA meeting,
- going to therapy one time or
- taking one or two random drug screen tests.
A judge is looking to see that the parent has a real commitment to bettering
themselves and this commitment is document with proof.
If a parent can show the court and the other parent results that you dealing
with your addiction these efforts will help you obtain a more favorable
result in court.
Below are steps you can take to show a court you are taking deal with your
substance abuse problem:
Steps a Parent can Take to Show they are Working on a Substance Abuse Problem
- Attend Alcoholics Anonymous (AA) Meetings or Meetings for Drug and/or Other
- Random Alcohol/Drug Screens
- Soberlink Breathlyzer Device
- Psychological Evaluation
- Substance Abuse Evaluation/Counseling
- Out Patient or Long-Term Rehabilitation
Attend Alcoholics Anonymous (AA) Meetings or Other Addictions
One way to show the court you are seeking help is by participating in a
support group such as AA and attending regularly. Individuals who seek
assistance from 12 step groups such as Alcoholic Anonymous have had successful outcomes.
By following the steps the organization sets out progress can be shown
by gaining chips with AA. You are going to need to do more than just attending
one or two meetings. You will need to commit to the program and show the
court real progress.
If you work the program, then your sponsor can be a powerful witness on
the stand. In one of my cases I believe the testimony of the addicted
parents sponsor made the difference between that parent having supervised
visitation to instead having an expanded possession schedule.
Random Alcohol and Drug Screens
One the big concerns in cases where there is a parent with an addiction
problem is that spouse will engage in the concerned activity when in possession
of the children. This is true even when the parent is working their steps
in AA and has been sober for a period of time. Unfortunately, if a parent
has a problem with addiction, often relapse is a real concern.
Something I have used as tool to help alleviate this concern is to have
the parent with the addiction problem commit to random alcohol or drug
screens as a way to show the court or the parent that there is a real
commitment to recovery and they are willing to prove they are drug or
What I tell the parent with the addiction problem that this their chance
to either rise to the occasion or will be real setback for them because
this can be powerful evidence either way. I have seen parents really commit
to staying clean and these tests really work in their favor. I have also
seen just the opposite where a parent could not stay clean and the tests
hurt them in court.
Is there a way to get immediate results about blood alcohol levels?
SOBERLINK Breathalyzer Device
SOBERLINK is uses a handheld portable breathalyzer that connects wirelessly
to a SOBERLINK monitoring portal. The device confirms blood alcohol level
and uses facial recognition technology to ensure the correct person is
using the device.
The test could be performed:
- during and
- after a visitation
The results are then transferred wirelessly to the private SOBERLINK monitoring
portal for real-time results. The results can be sent by text or email
to the concerned parent. The use of SOBERLINK could allow a concerned
parent reassurance that the other parent is sober throughout the visitation.
Are SOBERLINK results admissible in court?
Currently there are very few Texas case discussing the admissibility of
SOBERLINK results. In Cox v. State, 446 S.W. 3d, 605 (Tex. App. –
Texarkana 2014). In Cox, the appellate court held the trial judge improperly
admitted the SOBERLINK results into evidence.
This was because the State presented no evidence as to:
- how the SOBERLINK machine operated,
- how it measured breath-alcohol content,
- how it generated or recorded the test results,
- nor how the reliability of these test results could be measured.
In the future if the above information is provided to a court there is
the potential these results are admissible in court. Another thing to
be aware of is that Cox v. State was a criminal case. The burden in introducing
evidence is lower in family court.
What else can assist a court in these types of cases?
Evaluations with trained professionals as discussed below can be helpful
in substance abuse cases. Having the input of a neutral professional can
assists, judges as they hear a case. However, not all cases require the
use of a formal substance use and abuse evaluation. Evaluations are expensive,
and thoughtful analysis should be applied to determine whether such an
evaluation is appropriate in each case.
What other evidence is helpful to the court to show recovery from addiction?
- Don’t be late to appointments
- Don’t be late for any drop-offs or pick-ups for the child or children.
- Be able to call witnesses into court, if needed, that can testify about
how you are as a parent.
Drug and alcohol abuse can often be seen in the physical appearance of
a person this can sometimes take the form of:
- Glassy, red eyes,
- messy appearance,
- disheveled clothes
If you are the parent accused of substance abuse it is a good idea that
any time you will be at any out in public or in contact with your ex to:
- dress neatly
- appear clean and put together
- Not to show up five minutes late to a meeting with no shower and a messy
This will prevent witnesses such as your child’s teacher from saying:
- you show up late for meetings
- you always appear messy or disheveled
You want the teacher to say you are always put together and prompt.
Where to start?
If you are the parent accused of substance abuse, you may want to participate
in one or more of the above courses of actions to show the court you are
taking appropriate steps.
If you are the parent who is concerned about your ex’s substance
abuse problem, you can ask the addicted parent to engage in one or more
of the above courses of actions either voluntarily or by formally filing
a motion with the court requesting same.
If a parent’s addiction has resulted in domestic violence you may
want to discuss pursuing a protective order through the court.
For more information on
Domestic Violence Protective Orders click here.
If you want to know more about what you can do,
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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divorce, it's important to speak with one of our
Houston, TX Divorce Lawyers right away to protect your rights.
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