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Alcohol and family law – practical and legal implications

By July 8, 2019February 23rd, 2024No Comments

With “Dry July” upon us, it’s a good time to look at the subject of alcohol and family law, and what you can do if you need to co-parent with an ex who you know has a real problem with alcohol. What are the practical and legal steps you can take to ensure your kids are being raised in a safe and healthy environment when they are with your former partner?

Since alcohol is a legal drug in our society, it is of course common for parents to drink, but when their 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 ex-partner, it’s natural to be extremely 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.

Privately handling alcohol concerns

If you wish to maintain a good relationship with your ex and yet need to know your children are safe when in their care, try not to blindside them with your actions in relation to the drinking. Think about first attempting to communicate with them as to how to handle the situation as you may be able to reach a workable private agreement. It may be possible to resolve the situation by entering into consent orders which spell out in detail how each parent must behave during or around parenting time. Health-related agreements are actually increasingly common in consent orders in today’s wellness-focused culture.

You may be able to get them to agree to submitting to testing before and/or after parenting time. In this regard, the use of personal alcohol monitoring systems is rising as new technologies have been developed which enable highly accurate, non-invasive monitoring in real-time with wireless connectivity. Parents wishing to prove their sobriety often voluntarily agree to such monitoring as it generates trust and can help them prove their parenting capacity. When engaged in voluntarily, using such systems can really help create a stress-free co-parenting dynamic.

But realistically, cooperation is not always possible, especially if the drinking parent is in denial about their alcohol misuse.

Seeking remedies through the court system

If you already have parenting orders in place, the process of changing them through the courts can be time-consuming and expensive. To modify parenting orders, it’s necessary to show a material change in circumstances. It will be necessary to provide evidence about the drinking parent’s alcohol abuse and how this places the kids in physical or psychological peril 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 court proceedings, allegations of alcohol or drug abuse should be disclosed in the Notice of Risk document that is filed by both parties. Although alcohol is a legal drug, 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.

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 likely that such testing will expand to incorporate 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.  (In Australia check out Ajen, which supplies alcohol monitoring devices which they say have court-admissibility and may assist with family court orders.)

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.

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.

If you’re in the process of separating from a spouse who abuses alcohol these tips may help. First of all, the kids should never be made to report to one parent about the other’s behaviour. But they can still be taught to assist their own safety. For example:

  • Teach them not to get in a car with someone who has been drinking.
  • Give them mobile phones and teach how to use them.
  • Make sure they know your full name and address, and can remember your phone number rather than just having it stored as shortcut on their phone.
  • Designate a trusted backup contact in case you cannot be reached.
  • Let kids know how to find ‘safe strangers’ if they need help (police, firefighters obviously but also other trusted adults).
  • Role play what they should do if they ever need help.

Other important actions you can take include:

  • Seek out help for your child

A child who is already dealing with the emotions of divorcing or separating parents has a double whammy when a parent is also abusing alcohol. Finding age-appropriate counselling where they can speak without guilt or fear of consequences is often very helpful. Check out this article for signs your children may need a therapist.

  • Maintain routines

A parent suffering addiction is a lot to handle for any child. Having solid routines helps, and extracurriculars can help to distract.

  • Seek out help for yourself

Bolster your support network. Reach out to family and friends, find allies, access the available resources (counsellors, therapy, support groups like Al-Anon).

  • Look into the new technologies that can provide peace of mind

As noted above, you may be able to obtain your ex’s voluntary agreement to participate in safeguarding methods such as alcohol monitoring systems. This can be especially effective if the drinking parent is motivated to pursue sobriety.

If you wish to explore the legal remedies that may be open to you, please give us a call to arrange a free first conference to discuss your situation.

You may also like to read our blog on recreational drug use and family law, or this blog on how family courts view marijuana use.

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 lawyers Cristina Huesch, Angela Li or Sharla Stevens 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.


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