Do you need to co-parent with an ex who you know has a problem with alcohol? You may like to know how the family courts handle matters involving an alcohol-abusing parent. Let’s take a look at some of the remedies available through the court system.
[Alcohol and parenting in the courts…continued]
When a parent’s drinking is more than social or is clearly unmanageable, it can become a serious issue and may endanger the children. In fact for a large number of the separating parents who proceed to final hearings in the family courts, issues such as alcohol or other substance misuse and the connected mental health, safety and violence issues are relevant factors. If you have an alcoholic co-parent, it’s natural to be concerned about the potential effect on the children.
Alcohol use in itself doesn’t render a person an unfit parent, and it typically only becomes a problem in the family courts if there is evidence that the parent is drinking to excess and this is impacting on the children.
Seeking remedies through the court system
If you already have parenting orders in place, to modify them through the Court it’s necessary to show a material change in circumstances since your orders were made. It will be necessary to provide evidence about the drinking parent’s alcohol abuse and how this places the kids at physical or psychological risk and is therefore not in their best interests for the existing orders to continue. Gathering evidence to establish this can be uncomfortable and difficult, but you do need strong evidence to succeed if you wish to go down this path. It may assist you to record your ex’s out of control drinking and related irresponsible behaviour. Diarising missed visitations or lack of responses to the children’s communications may also help.
If you commence fresh court proceedings, allegations of alcohol or drug abuse should be disclosed in the Notice of Risk document that must be filed by both parties. Although alcohol is legal, where parental alcohol use is excessive and/or undermines the meaningful relationship between a parent and child, or creates a need to protect the child from physical or psychological harm, the courts will consider the issue in making orders which are in the best interests of the child.
What are typical court outcomes?
While the court process may lead to an alcoholic parent having their time with the children restricted or supervised, it is uncommon for the courts to completely cut off contact with the children, especially if the drinking parent is enrolled in a treatment program and is actively pursuing sobriety.
Outcomes in matters involving alcohol misuse and parenting depend on the unique circumstances of each case but may range from restraining parents from consuming alcohol in the 12 hours before having care of the kids, to orders to store alcohol away from children, to suspension of time with the alcohol-misusing parent, or imposition of supervised time.
Court orders are often made for testing for alcohol consumption. The traditional tests include urinalysis (which is typically also used to test for illicit drugs), CDT tests (which can show if alcohol has been used at high frequency and in large quantities), and hair follicle tests (which show usage of drugs and alcohol within the past few months). It’s also increasingly incorporates the use of smart monitoring systems, as these act as an impartial observer by offering police-grade accuracy in a non-invasive, instant and continuous manner. The Court can set the frequency of any tests to be completed, or if the test is to be completed on a random basis at the request of the other parent.
Courts may order ongoing monitoring or temporary screening as a condition of time with the child. They can also compel counselling and therapy to assist the drinking parent.
A recent case
Alcohol use was a significant issue in a recent parenting matter pseudonymised as Langmuir & Fields. In this matter the father, who suffers from alcoholism, continues to have to submit to hair follicle testing and has also had a breathalyser fitted to his car to ensure he didn’t drive the children under the influence. The judge noted:
“The significance of the breathalyser is that without it I may not have been able to contemplate time with the Father other than in limited circumstances. The information [it] provides me is invaluable. I know that the burden is $230 per calendar month, but the reality is that without it the additional amount of money that the Father will have to spend on lawyers proving his sobriety when driving or his lack of driving under the influence will be very substantial. It will cost him a lot more than $230 per month by the additional fuel for legal the dispute between the parents. It was and continues to be a significant matter for me in my determination of the children’s welfare.”
This case demonstrates the importance of the parent with an alcohol abuse problem having insight into their problem, and the attendant “risk of unintentional abuse”. The father was praised by the court for revealing “frank accounts” of his treatment for his alcoholism with his medical practitioner:
“The fact that that was revealed by the father and not prised out of the medical information system by subpoena, is to his credit and demonstrates insight”.
In this case, the court noted it was fortunate that the father recognised he had a problem, but said the question remained “whether he recognises sufficiently that he has the problem” and this ultimately affected how the court determined the father’s time with the children.
When allegations of alcohol abuse are false
The use of sobriety monitoring and reporting technology is increasingly helpful to address unfounded accusations of alcohol abuse in custody cases. They can help speed up a drawn-out legal process by providing powerful, honest evidence of sobriety to the courts and can help discredit a parent making false allegations. Being able to provide accountability for sobriety enables a parent accused of alcohol abuse to say to the court, “I’m actually not drinking and the children are safe with me”. This can be especially helpful when parents had a previous documented alcohol use disorder which has created scepticism over their parenting capacity. The courts need credible, tangible evidence of a safe lifestyle and parents who can supply a documented record of consistent sobriety will find it helpful to their case.
Do you require legal advice regarding a parenting dispute or other family law matter, perhaps in which parental alcohol misuse may be an issue? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.