How to Navigate Hearsay in Family Law Cases Involving Alcohol Abuse

December 29, 2020
Girl covering her ears during parent's argument.

According to Family Law experts, addiction is amongst the top six reasons for divorce, next to a lack of partnership or intimacy, falling out of love, communication problems, and not being ready for marriage. In any of these instances, emotions are running high for both partners, especially when there are children involved. “With the emotional content of a divorce, it’s common for spouses to make allegations about each other's behavior,” says Susan Guthrie, 30-year Family Law Attorney, and Mediator. “We run into this situation frequently where there are allegations of alcohol abuse.”

Unless an individual shows up to a courtroom intoxicated, it’s difficult to prove whether the allegations are true or false without external data indicating that at some point in time that they were incapacitated, and it presented an issue when taking care of the children. “Unfortunately for the families, these allegations can take over the case if no resolution or tiebreaker is reached,” Guthrie says. This situation, in which one client’s word is placed against the other, can quickly lead to hearsay accusations.

Defining Hearsay

The general definition of “hearsay,” Guthrie explains, is a statement that’s:

  • Made out of court by someone other than the person making the statement in court.
  • Heard or overheard, and then stated as truth or fact in the court of law.

“The problem with hearsay is that the person who made the statement is typically not present in court to be cross-examined,” Guthrie says. Contrastingly, evidence tends to prove the truth of a statement or fact being put forth. To prevent baseless he-said, she-said allegations, hearsay is not admissible as evidence in the court of law unless an exemption is made that allows the exclusion back in.

Hearsay Versus Admissible Evidence

Co-parents sitting side-by-side during mediation

What makes alcohol allegations a slippery slope is that the only people who are usually present and able to testify are the spouses themselves, Guthrie explains. Statements that others made, whether it’s friends, family members, therapists, or doctors, cannot serve as proof of intoxication or alcohol abuse without an external indicium of the substance use and something that can be corroborated in court. Here are some examples of hearsay in Family Law cases involving alcohol abuse and insights on navigating them.

  1. Hearsay: “I talked to his girlfriend, Marianne, and she told me he was so intoxicated last Saturday night when the kids were over that he fell asleep and his son was playing with the stove.”
  2. Admissible Evidence: The concerned party cannot use Marianne’s relayed statement as evidence. Instead, Marianne can be brought in as a witness to give her testimony directly. For instance, “I saw him drink six shots of whiskey, and then he fell asleep on the couch. When I walked in the kitchen, the five-year-old was playing with the stove.”

  1. Hearsay: Husband claims that the wife comes home from a bar and appears to be intoxicated as she is leaning on the wall and slurring her words.
  2. Admissible Evidence: The spouse cannot testify to any allegations not witnessed firsthand because claims must be based on actual observations. While clients cannot make a conclusion about their husband or wife having an alcohol abuse problem, they can share what they’ve personally witnessed. For example, “I have seen my spouse drink in excess to the point of blackouts sixteen times in the last month, and these are the things that I have personally observed.”

For these claims to be considered relevant, clients must testify to the course of conduct that leads them to believe that alcohol is an issue. “There has to be a cohesive line between stating that ‘I saw them drink what anyone would see as an excessive amount of alcohol’ to negative behavior as a result of that, and then, why those claims tie in to be a threat to the children,” Guthrie says.

Mitigating Hearsay Evidence Using Soberlink Alcohol Monitoring  

Soberlink compliant test alert

If there is anything that the court feels is credible about the alcohol abuse allegations in a child custody case, a judge will err on the side of caution in the best interests of the child. This may mean that arrangements that are considered safer for the children involved, such as supervised visitation, are temporarily put into place. “The longer that children are not regularly exposed to both of their parents on a relatively equal basis, the worse it is for the person who might be being wrongfully accused,” Guthrie says. “That’s why the real-time results aspect of Soberlink is so important; you can dispel false allegations early.”

How does Soberlink work?

Combining a breathalyzer with wireless connectivity, Soberlink automatically documents proof of sobriety in real-time to provide court-admissible evidence that can keep children safe. Having used Soberlink as a tool in Family Law cases involving alcohol abuse since its market debut a decade ago, Guthrie says that Soberlink’s technology-based approach to alcohol monitoring, “takes something that is difficult to measure in the moment and that is usually based upon others’ perceptions, and breaks it down into a science.”

Soberlink features technology that detects physical tampering and has adaptive facial recognition, real-time reminders and alerts, automated reporting options, and scheduled testing. Considered The Experts in Remote Alcohol Monitoring Technology™ in Family Law, Soberlink can be utilized either during parenting time only or daily testing. Typical schedules for either program include two to three tests per day during waking hours.

Soberlink’s Role in Navigating Hearsay

While alcohol abuse is hard to prove or disprove due to the fleeting amount of time it registers in an individual’s system, Soberlink provides concrete data determining the presence or absence of alcohol at a specific date and time, as opposed to observational information like the above examples. This court-admissible evidence can either be used to support testimony or stand on its own. Soberlink has, at times, been a catalyst for change for some of Guthrie’s clients who have faced the legal reality of alcohol abuse allegations, knowing that the judge will likely side with the spouse depending on their Soberlink test results. “One of the things that I have always encouraged my colleagues to do was to consider the use of Soberlink when their client is being accused because it tells you two things: if your client agrees, I can almost be certain right from the get-go that they don't actually have a problem, and when the client doesn't want to use Soberlink, it can be a telling factor,” Guthrie says.

When a Parent is Drinking:

If Soberlink test results reflect alcohol abuse, it can shed light on the issue and give the parent the ability to repair the relationship with their children. While Soberlink doesn’t “solve” the problem, it can foster accountability while establishing new healthy routines, Guthrie shares.

When a Parent is Not Drinking:

If the parent can complete tests without any issues, the allegation of alcohol abuse may quickly dissolve. “You can prove you don’t have a substance abuse issue around alcohol with Soberlink,” Guthrie shares.

Learn more about how Soberlink can be used to navigate hearsay in Family Law cases involving alcohol abuse: soberlink.com/family-law/

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