How to Prove Sobriety to a Texas Divorce Court?

As a Houston Divorce Lawyer, I have actively participated in numerous divorce cases featuring substance abuse as a prominent issue. These cases encompass a range of substances, including illegal drugs, alcohol, and prescription pills. Substance abuse tends to be particularly problematic when children are part of the equation. Clients with alcohol or drug addiction would ask how to prove sobriety to court. 

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:

  1. I accidentally did some cocaine.
  2. The mother of my children just locks herself in her room and drinks until she passes out and lets the children run wild unsupervised.
  3. 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.
  4. 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.
  5. It was Saturday night and I had a few too many beers. 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:

  1. Me to minimize the damage to their case or
  2. Limit access to the children in someway

They often ask what evidence helps the court decide, when can a parent with a substance abuse problem see a child, and how to prove sobriety to court. 

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. But during some period of time:

  1. Your visitation is supervised, or
  2. You have to undergo random drug testing in order to exercise you visitation, or
  3. Some other restrictions

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 children lived.

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:

  1. attending a single AA meeting,
  2. going to therapy one time or
  3. 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

  1. Attend Alcoholics Anonymous (AA) Meetings or Meetings for Drug and/or Other Addictions
  2. Random Alcohol/Drug Screens
  3. Soberlink Breathlyzer Device
  4. Psychological Evaluation
  5. Substance Abuse Evaluation/Counseling
  6. Out Patient or Long-Term Rehabilitation

Attend Alcoholics Anonymous (AA) Meetings or Other Addictions

Participating in a support group like AA and attending meetings regularly demonstrates to the court that you are actively seeking help. Individuals who engage in 12-step groups such as Alcoholic Anonymous often achieve successful outcomes.

By following the organization’s prescribed steps, you can indicate progress by earning AA chips. Attending just one or two meetings won’t suffice; a commitment to the program and tangible progress is required to satisfy the court.

If you actively engage with the program, your sponsor can serve as a compelling witness in court. In one of my cases, I firmly believe that the addicted parent’s sponsor’s testimony played a pivotal role, transforming their custody arrangement from supervised visitation to an expanded possession schedule.

Random Alcohol and Drug Screens

In cases involving a parent with addiction, a major concern is whether that parent might engage in the addictive behavior while having custody of the children. This concern remains, even if the parent is actively participating in AA and has achieved sobriety for a while. Unfortunately, relapse is a genuine worry in addiction cases.

To address this concern effectively, I often recommend that the parent with addiction issues agrees to random alcohol or drug screenings. This demonstrates to both the court and the other parent a genuine commitment to recovery and a willingness to prove their sobriety.

I emphasize to the parent with addiction that this opportunity can either be a significant step forward or a setback. It serves as compelling evidence either in their favor when they maintain sobriety or against them if they struggle with staying clean during the screenings.

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:

  1. before,
  2. during and
  3. 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:

  1. how the SOBERLINK machine operated,
  2. how it measured breath-alcohol content,
  3. how it generated or recorded the test results,
  4. 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 assist 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?

Consistent Behavior

  1. Don’t be late to appointments
  2. Don’t be late for any drop-offs or pick-ups for the child or children.
  3. Be able to call witnesses into court, if needed, that can testify about how you are as a parent.

Physical Appearance.

Drug and alcohol abuse can often be seen in the physical appearance of a person this can sometimes take the form of:

  1. Glassy, red eyes
  2. messy appearance
  3. 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:

  1. dress neatly
  2. appear clean and put together
  3. Not to show up late to a meeting with no shower and a messy appearance.

This will prevent witnesses such as your child’s teacher from saying:

  1. you show up late for meetings
  2. 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.

For the parent 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.


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

  1. 6 things You Need to Know Before You File for Divorce in Texas
  2. I Want a Texas Divorce but My Husband Doesn’t: What can I do?
  3. Am I Married? – Marital Status in Texas
  4. Can I sue my spouse’s mistress in Texas?
  5. 6 Tips – On How to prepare for a Texas Divorce
  6. Roadmap of Basic Divorce Procedure in Texas
  7. Child Custody Basics in Texas
  8. 6 Mistakes that can Destroy Your Texas Divorce Case
  9. 10 Quick Tips About Parental Visitation
  10. Does it Matter who Files First in a Texas Divorce?

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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