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Blogs from March, 2022


When you go through the divorce process one of the most difficult areas to work through is the matter of child custody. That can be even more true when you are convinced that your soon-to-be ex has a serious drinking problem, one that rises to the level of addiction and creates an unsafe atmosphere for your children. You also know that it’s not enough for you to believe, or even to know your spouse is an alcoholic. You need to prove alcoholism in custody cases.

Physical Custody & Legal Custody

Custody is often thought of as being a single topic for the court, but it’s actually divided into two areas. The first is physical custody and the second is legal custody. Physical custody refers to where the children will live. Legal custody refers to which parent has the right to make significant decisions on the child’s behalf, particularly in areas of religion, education, and medical care.

It’s important in this context to note that judges will not automatically treat both forms of custody the same way. The parent that gets full physical custody may well have to share legal custody.

As it pertains to proving alcoholism, a spouse will have a higher legal bar to hurdle to argue that her ex should get no say in where their kids go to school than they will on the question of physical custody. Not all manifestations of alcoholism are the same. Some people continue to be exceptionally high performing even while struggling with drinking. This means a court might well conclude that this person should not have physical custody of their kids but should continue to have an equal say in important big-picture decisions.

For our purposes here, we’ll focus on proving alcoholism for the purposes of establishing sole physical custody.

The Burden of Proof

It is of no small legal consequence that the burden of proof when it comes to alcoholism in custody cases will lie on the spouse who is making the charge that the other parent is unfit. In most civil cases, the burden of proof is a preponderance of evidence, where each side makes their case and whoever puts forward a better case wins. You might wonder why, since divorce is a civil proceeding, the same logic doesn’t apply here.

The reason is that the law starts with a presumption that both parents have the same rights, and the child will benefit from being with them a reasonably equal amount of time. The parent making the case to alter that, and effectively strip or diminish the other parent’s rights, must make an exceptionally strong case–something stronger than “more likely than not”.

Three Ways To Bring Forth Evidence

You can bring forth evidence with legal documentation, witness testimony or actual testing.

Legal Documentation: If your spouse has been arrested for drunk driving or disorderly conduct, this type of documentation needs to be introduced into the record. If the spouse needed to go to rehab for any reason, that will be on the record. Doctor’s records might show evidence of alcohol abuse.

Even if there aren’t these types of formal records on hand, there are other signs of alcoholism that can be left in writing. Do you have lengthy, incoherent text threads sent at odd hours? If you have enough of them, a pattern of behavior might be demonstrated.

What about a credit card record of purchases at the local liquor store? And while not “documentation” in the literal sense, that rambling voice message you got at 2:30 AM after the bars closed up can certainly qualify as evidence.

Witness Testimony: People who are alcoholics often think they keep their problem a secret, but alcoholism is rarely a well-kept secret. Are your neighbors aware of your spouse’s drinking? They can be summoned to testify. So can family members. Co-workers, who saw your spouse come in to work with a hangover–or not at all–might be subpoenaed to testify.

The EtG Test: Technology has given us the ability to detect whether alcohol has gone into someone’s system in the last 80 days. By itself, this won’t prove anything more than that your spouse had one drink in the last three months. Where it can be valuable is if your spouse is claiming to be sober and you know that is not in the case.

We’ve focused this conversation on the spouse who is trying to prove the other has a drinking problem. The EtG test can actually be even more valuable to the spouse on the other side–the accused spouse. An example where this might come into play is a spouse who has been to rehab in the past, been sober for a significant amount of time and finds themselves wrongly accused of alcohol abuse. An EtG test can help them clear their name and retain their parental rights.

At DeTommaso Law Group, LLC, we’ve represented clients on both sides of this sensitive issue. We know how important it is to the parents–both their rights and their reputation. And we know how vital this all is to children. They are the ones facing either living with an alcoholic parent or being denied time with an unfairly accused parent. Fighting for the right information and the right outcome is what we do. If you need help in your custody case, call us today at (908) 274-3028 or contact us online to set up an initial consultation.

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