How to Get Sole Custody When Your Ex Is an Alcoholic
By Elizabeth Rayne, J.D.
Jupiterimages/Brand X Pictures/Getty Images
Keeping a child out of harm's way is a parent's No. 1 priority. In cases of shared custody, the addictive behavior of one parent, including alcoholism, could be deemed detrimental enough to the child to award sole custody to the other parent. Further, while all states determine divorce and custody issues according to their own set of laws, the best interests of the child are paramount in custody and visitation decisions.
When a parent has sole custody, she may have physical custody, legal custody, or both. Physical custody refers to where the child lives. Sole legal custody means that parent makes major decisions regarding the welfare of the child, including education, health care and religion. It is unusual for a court to award sole legal and physical custody to one parent. Generally, courts will only award sole custody when it is found to be in the best interests of the child, such as where a parent is unfit to care for the child.
In determining the custody arrangement, the court is primarily concerned with what is in the best interest of the child. To this end, the court will consider the home environments of each parent, as well as the ability of each parent to take care of the child, and the safety of the child. As a result, the court may consider alcohol abuse in making a custody determination, particularly if the addiction puts the child at risk when in the physical care of the alcoholic parent. At the hearing to determine custody, you may present evidence of the other parent's alcoholism to demonstrate that it is not in the best interest of the child for that parent to have custody, and also that alcoholism impairs the parent's judgment in making decisions for the child.
If a court order for custody is already in place, you may seek a custody modification to change the arrangement from joint to sole custody. Generally, you may request modification of a custody order if there has been a substantial change of circumstances that were unknown at the time the judge made the initial order. In other words, if the court already knew about the parent's alcoholism at the time of the original order, you may be prevented from modifying the custody arrangement if the circumstances have not worsened. In most states, you may initiate a custody modification by filing a petition with the same court that issued the original order. At the hearing, you may present evidence of the changes, and show why the alcoholic parent is unfit to have physical or legal custody.
Visitation and Support
In cases where a parent does not have legal or physical custody, he will likely be granted visitation. In this case, you may request that those visits be supervised if you are uncomfortable with the other parent being alone with your child. Often, courts will award supervised visitation temporarily, to allow a professional to observe the parent's interactions with the child to determine if it is safe to leave the child alone with the parent. Additionally, because custody and child support are two separate issues, an alcoholic parent may still be required to pay child support whether or not he has custody or visitation rights.
In both the initial custody determination hearing and any subsequent hearings to modify custody you must provide clear evidence of the other parent's alcoholic behavior. You may consider hiring a private investigator to gather evidence, or you may present evidence of past admissions into rehabilitative programs and subsequent relapses. Also, you may show driver and arrest records that may demonstrate a pattern of alcoholic behavior.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."