Keeping Children Safe…Alcohol abuse and caring for a kid during a divorce…what can be done?
Published in Chicago Lawyer Magazine, August 2024
By Daniel Stefani
In a pending divorce involving a minor, the safety and well-being of the child is one of the most important concerns. If a parent struggles with alcohol abuse and cannot appropriately care for a child, courts can impose several levels of remedies. The most extreme would be to suspend parenting time. The next level would be some sort of supervised parenting time where a third-party professional could monitor the parent’s level of sobriety and ability to parent.
More typically, courts impose a monitoring protocol to make sure the parent with the minor child is sober and can provide care. Years ago, the only real option was to conduct a random lab test. This didn’t end up working well for a few reasons. First, a test was random and not imposed on a daily or regular basis so concerns remained about the parent’s drinking during parenting time. Also, there wasn’t an immediate result so there was a delay in the imposition of any remedies if alcohol was detected. Thankfully, there are several devices available today that can detect alcohol use and report results immediately.
Certain features of alcohol monitoring testing should include transmission of immediate results to a smartphone or other devices. There also should be a way for the monitoring system to recognize if the proper person is taking the test. Typically, there is a facial recognition feature that would authenticate the user. Today’s devices have a reliable measuring technology that is accurate, which requires the user to exhale into the device and measures the blood alcohol level. I believe the results should be presented to a court and deemed admissible as evidence. This would require the monitoring system to provide certain experts that could testify as to the foundation and authenticity of the results.
There are a few issues for the court to consider regarding the parameters of how the tests should be implemented and regulated. The first question is how often testing is required. Next, how long should monitoring last? Also, what happens when a test is missed? Finally, what happens with a positive test? Each case is unique, but, generally, testing should be at least one hour before parenting time and one hour after. For extended lengths of parenting time, there could be additional testing.
How long should a parent be required to submit to alcohol monitoring? The court could look to any alcohol evaluation report, the opinion of the guardian ad litem or other experts, for the length of monitoring. Many judges simply impose an open-ended duration allowing for either party to petition the court for a modification or termination of the required testing. Typically, the duration lasts at least a year but obviously, each situation is different and is affected by the level of alcohol abuse and future events that are unknown.
While the monitoring is occurring, there is always a question of what should be the response to a missed test. Should it be treated as a drinking event? The short answer is that a missed test is a drinking event. However, there are many reasons to excuse a missed test. Also, is a late test a missed test? A missed test could be a suspension of parenting time, but courts typically proceed with caution. Rarely has a court treated a missed test as grounds for an immediate suspension of parenting time. Typically, a missed test is not even grounds for an immediate change to the party’s parenting time. Remedies are more extreme when there are an excessive number of missed tests.
The last issue is the appropriate remedy for a positive test. Is it in the nature of punishment or do you use an analysis of the circumstances to craft a remedy? Certainly, more intense therapy or treatment is an alternative to suspension or supervision of parenting time. Bottom line, any positive test should result in some action. This starts with the immediate turnover of the child to the other parent. The court should also consider the level of positive results when fashioning any remedies. The more positive tests that occur in a shorter period of time, the more extreme the remedy.
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.