As of 2018, there were 6.5 marriages and 2.9 divorces for every 1,000 people in the U.S., according to the Centers for Disease Control and Prevention (CDC). This data suggests that, while well-intentioned, about 45% of marriages in the U.S. end in divorce. Although the dissolution of marriage is difficult in any capacity, when children and the issue of child custody are involved, the situation has proven to become more complex. Rather than file for sole custody, parents are often encouraged to draft a child custody parenting plan in Family Court that allows children to continue visitation with both parents. When alcohol abuse – or any substance abuse - is a factor in a custody case, additional precautions must be taken by parents, attorneys, and other law professionals to ensure that the best interests of the child are being upheld.
Alcohol Abuse and Family Law
Just as no one plans to get a divorce when they get married, no one plans to struggle with substance abuse. However, a 14-year study conducted by the National Center for Biotechnology Information (NCBI) found substance abuse to be one of the most common reasons for divorce. Consequently, it’s not uncommon for children to witness evidence of an alcoholic parent’s behavior or alcohol abuse in the household. One in five adult Americans grew up in homes with some degree of substance abuse, according to the American Academy of Child and Adolescent Psychiatry (AACAP).
As intuitive and attentive as children are, they can pick up on small things such as tension, hushed arguments, stress, and the sense that something is not right, even when parents are careful to mask such occurrences. “Children are emotionally and physically dependent on their parents growing up. If you don’t have a parent that’s physically present because of substance abuse or an addiction to alcohol, the children are at much greater risk of having intellectual, social, and emotional problems,” says Dr. Lana Stern, Ph.D., Psychologist and Marriage and Family Therapist.
The psychological effects that alcohol abuse may have on children, as stated by the AACAP, include:
- Guilt: The children may blame themselves for their parent’s substance abuse, believing that if they behaved better, etc. that the adult would not be an alcoholic.
- Anxiety: As alcohol abuse can often involve erratic behavior, the children may feel on edge and uneasy, worrying about the situation at home, the safety of their parents, and how the day will unfold. “There’s a lot of anxiety children experience when they have an alcoholic parent because the children don’t know what to expect at home and if the parent is going to be sober,” Dr. Stern says.
- Embarrassment: Often associated with secrecy, issues of alcohol abuse at home may result in the children feeling like they can’t discuss their home life as easily or invite friends to their house. There may also be evidence of children becoming fearful the parent will become intoxicated in public, in some custody cases.
- Confusion: The lack of stability that’s often associated with alcohol abuse can be hard for children to grasp, causing them to feel unsure about how the parent will act and creating an inconsistent routine. “Children do best when they have a predictable, stable environment. When you have an alcoholic parent sharing custody, that structure may be missing,” Dr. Stern says.
In addition to the psychological well-being of children, a parent’s alcohol abuse can also raise a concern about the children’s physical well-being under their custody. Board Certified in Family Law, San Antonio Divorce Attorney Charles Hardy says that the primary concern in child custody cases involving alcohol abuse is the children’s well-being.
“Generally, in custody proceedings, it is evident the other parent is worried about the safety of the child or children during visitation. They are worried about the parent driving with them and worried about their ability to care for them when they have drinking problems,” Hardy explains. Situations like this present a high-risk situation for all parties involved, including attorneys and other law professionals. For nearly a decade, Family Law attorneys such as Charles Hardy have been using Soberlink Alcohol Monitoring in child custody cases involving alcohol abuse to help document and prove sobriety, streamline custody agreements, and offer Concerned Parties peace of mind.
Offering unprecedented facial recognition and robust tamper detection, Soberlink combines a professional-grade breathalyzer with wireless connectivity to deliver real-time test results. “Soberlink is thorough. It offers validity in the process, it avoids the ability to cheat the process, and it keeps parents sober while they are in possession of their kids,” Hardy says. While Hardy has looked at other programs in the past, he says that none of them hold the same weight in custody proceedings as Soberlink. “Soberlink is my favorite program to use in these cases, and judges in San Antonio tend to favor Soberlink in custody and alcohol situations because they understand and trust it.”
Working to meet each of the needs of various Family Law child custody cases involving alcohol abuse, Soberlink offers two levels of alcohol monitoring:
- Level 1: The Level 1 program requires the parent to submit tests during parenting time only. Designed to be dynamic, this one-of-a-kind program works with any parenting or custody schedule. Testing times are determined by the Monitored Client (the one taking the test) and the Concerned Party (the person who will receive Soberlink test results).
- Level 2: The Level 2 program provides a set schedule with daily testing seven days a week. Complete abstinence is needed for this program, despite a co-parent’s visitation schedule or custody agreement. Level 2 testing times are managed by Soberlink, which sends reminder text messages for scheduled tests and documents missed tests. An effective way to prove sobriety and monitor alcohol use, this program typically involves a schedule of three to four tests per day during waking hours.
The Parenting Plan
Laws regarding child custody and visitation vary between each state. With this in mind, attorneys understand the importance of following individual state child custody guidelines when drafting a parenting plan. Additionally, using the Soberlink Order Form and adhering to agreed upon time schedules is also vital to the custody agreement being accepted by the court. Orders not written using the Soberlink Order Form are not accepted as having any validity at Soberlink.
The ultimate goal of all custody arrangements and parenting plans is to make sure the best interest of the children is being upheld. Although it may be challenging to meet with a former spouse to discuss child custody arrangements, making an equal effort can result in having a stronger say in the outcome, rather than running the risk of having the court determine visitation guidelines.
Parenting plans and custody agreements can be devised to fit each family’s unique situation best. For joint or shared child custody situations, which allow children to spend significant time with both parents, standard parenting plans involve time split 50/50 or 60/40 custody. Alternatively, sole custody allows the children to have one consistent home base with time typically split 70/30 or 80/20 custody.
It pays to be extremely detail-oriented, while drafting a child custody agreement or parenting plan. Avoiding vague or general language such as “liberal and frequent visitation” will help create a clear set of guidelines for courts to follow, preventing future custody debates. Other measures to consider incorporating into a custody agreement or court order include:
- Holidays, graduations, special events
- The age the parenting plan will be revisited to accommodate children as they grow older
- Travel guidelines for both domestic and international trips
- How much time each parent has to spend with their children, including third party time, such as daycare, school, and relatives
- Whether one parent will give the other parent the option to spend time with their children first before they make arrangements with a babysitter, relative, etc.
- Whose healthcare plan the children will be on, fee payments, and medical decisions
To ensure child safety when alcohol abuse is present, it’s encouraged that the custody agreement or parenting plan has a provision that allows for court-admissible alcohol monitoring. If Soberlink is the selected method for monitoring, parents and professionals can determine whether alcohol can be consumed outside of parenting time or if complete abstinence needs to be practiced seven days a week.
A Judge’s Guide to Assessing Severity
Alcohol misuse is a complex and challenging issue for judges and litigants. AUD can have significant and long-term impacts on the person, the family, and the community. Therefore, it is critical that judges do the right things in cases involving AUD. But for many reasons, doing the right thing can be difficult to determine. To support Family Law Practitioners in making safe, fair, and effective decisions for alcohol misuse in child custody proceedings, Soberlink and the National Council of Juvenile and Family Court Judges (NCJFCJ) created an AUD Bench Card. The document contains the most current research and data about AUD and is also easy to understand and explain to colleagues.
The Importance of Evidence
Whether concerns about alcohol abuse are warranted or not can be unclear; with Soberlink, law professionals obtain court-admissible documentation detailing the role alcohol plays in a child custody case. If Soberlink data reveals alcohol abuse is present, the courts may deter from granting sole custody or visitation rights to the struggling parent.
“[Before Soberlink,] If one parent thought the other was drinking and jeopardizing a child’s safety, they could ask the court to order a urine test to prove their suspicions. It was cumbersome and it was difficult. If the urine test came back negative, the parent who asked for it had to pay for it, and there were only so many allowed per month. There was a question as to whether or not the parent insisting on the test was actually worried about the other’s drinking or if they were trying to punish them,” Hardy says. “There was not a good method that I was aware of prior to Soberlink.”
Court-admissible and used in all 50 states, Soberlink helps alleviate he-said-she-said arguments and accusations with hard evidence. Tests can be taken morning, afternoon, and night or specifically during parenting time, allowing for clear evidence of the individual’s alcohol use during custody and while parenting. Beneficial to both parties, Soberlink provides peace of mind to families plagued by anxiety surrounding their child’s safety and the ability for a parent who is accused of alcohol abuse to prove their sobriety to maintain custody.
One client shares the impact that Soberlink had on her child custody case when her capabilities as a parent were being contested. “My attorney and I asked for a more reliable testing method. The only thing the judge would accept was an ankle bracelet to monitor sobriety, which was unacceptable to me. Research led my attorney to propose Soberlink as an alternative. We proved to the judge that I was sober using dozens of consecutive Compliant Soberlink tests, even in the face of yet another false positive from the lab.”
Including Alcohol Monitoring in the Parenting Plan
If alcohol abuse is a concern in a Family Law custody case, including a clause or provision for alcohol monitoring can be a vital component of a co-parenting agreement. More advanced than alternative options, Soberlink provides peace of mind through an FDA-cleared solution that includes automated facial recognition, tamper detection, and documented court-admissible results. Used as a tool in Addiction Recovery, Soberlink can help alcoholic parents on their recovery journey prove their sobriety. For many, knowing that they have to take a test later that may influence custody arrangements or their attorney’s ability to represent them, can help keep them accountable and motivated. Instead of random testing, which is often used for alternative methods, Soberlink’s scheduled testing promotes structure and accountability while reducing testing anxiety.
The choice between Level 1 monitoring during Parenting Time Only and Level 2 monitoring Daily Testing depends on parent preferences and the risk level associated with the situation. The recommended testing schedule for Level 2 is submitting the first test of the day shortly after waking up and the last test just before bed. When more than two tests daily are scheduled, Soberlink suggests spacing them out evenly throughout the day to ensure compliance and limit testing anxiety. These schedules are managed by the Soberlink system and tests are to be submitted every day. The Level 1 option is available for more low-risk cases, which allows for testing only during custody or parenting time, with schedules agreed upon and managed by the parents.
If Soberlink is involved in a court order, families and attorneys should be advised that a Soberlink Family Law Order Form must be completed and included. To ensure agreements are legally enforceable and to avoid vagueness or ambiguity in terminology, the following questions from the Soberlink Order Language Outline should be reviewed and considered with your attorney or legal representation beforehand:
How will testing be reported (Which Soberlink Plan will be used?)
- Basic Plan with no real-time alerts. Includes daily email reports of previous day’s testing and is limited to two report recipients, the Monitored Client, and Concerned Party
- Plus Plan with real-time email alerts. Includes daily, weekly, and monthly email reports with unlimited report recipients
- Premium Plan with real-time email and text alerts. Includes daily, weekly, and monthly email reports with unlimited report recipients
Who will pay for the Device and monitoring fees?
- Monitored Client: The parent required to submit tests using the Soberlink Device
- Concerned Party: The person who will receive Soberlink test results and has the best interests of the child in mind
How many tests per day are required during a full day of testing?
- Two tests per day: When waking up and before bed
- Three tests per day: When waking up, mid-day, and before bed
- Four tests per day: When waking up, early mid-day, late mid-day, and before bed
The unanimous consensus from an expert panel listed in the Soberlink Best Practices guide recommends three tests per day at the start of a Soberlink program. To promote progress and growth, the panel agrees that the number of daily tests could be reduced to two after favorable results are given over a one year. * Hardy weighs in on this, stating that he finds multiple tests throughout the day to be very important. “I like several tests per day, with one early in the morning and then late at night, as some people try to drink around the testing phases.”
What are the consequences of a missed test? What are the implications of a positive test?
These questions will vary based on personal preference and the parent’s alleged substance abuse. However, the Soberlink Best Practices guide offers potential solutions, including:
- Missed test: This can be viewed as an opportunity to reevaluate the schedule and program, request additional testing, or intervene. The expert panel’s unanimous consensus is that missed test events should be dealt with using a rational discussion before becoming grounds for an immediate change to the parenting plan.*
- Positive test: Like a missed test, a positive test can be seen as an opportunity to reevaluate parenting for that day, request additional testing, or reduce or eliminate parenting time in the worst-case scenario. The most beneficial response for the child may be an adjustment to the parenting plan that is appropriate for the situation.
A solution Hardy has seen take place in court in the event of a positive test is “step backs,” or having a parent revert to a lower level of custody or visitation. Steps may be broken down, as follows:
- Phase 1: Visitation for several hours of the day with Soberlink in place
- Phase 2: More time allotted with the children if there is evidence of alcohol abstinence during parenting time. May include a possible overnight.
- Phase 3: More time, more overnights
- Phase 4: Standard custody or possession order. Start back at Phase 1 if there is evidence of relapse to ensure the safety of children and for court orders to be straightforward.
“Having someone go back to Phase 1 automatically and starting the whole process over, to me, makes sense, and it seems to be beneficial to the client,” Hardy says.
As the experts in alcohol monitoring, Soberlink has been helping parents navigate custody agreements and divorces involving alcohol abuse for over a decade. Committed to keeping the best interests of the child top of mind throughout court proceedings, Soberlink is the most technologically advanced, convenient, and reliable tool in child custody litigation when there is evidence of substance abuse.
*Please note that information in this blog does not, and is not intended to, constitute legal advice in respect to any particular legal matter.