Wine is an alcoholic beverage that has been around since ancient history. Ancient Greek culture had a god associated with wine called Dionysus, who was connected to grape harvests, ritual madness, and religious ecstasy.
The effects of alcoholic intoxication have been well-known since the days of antiquity. Ancient Greek tales described how moderate wine consumption could enhance feelings of love and euphoria, and how too much could cause people to act violently. The term “wino” was coined to refer to people who drink wine in excessive amounts. Today, “wino” can be used endearingly to describe someone who is a fan of all things wine. This article relies on the dictionary definition of the term: “a usually indigent alcoholic who is addicted especially to wine.”
Despite human civilization’s rich history with the tradition of drinking wine, the negative effect of being an alcoholic is a serious issue that can have severe repercussions on one’s interpersonal relationships. Alcoholism is a disease that continues to affect millions of people throughout the world. So how do courts consider a parent’s alcoholism in child custody cases?
Factors for Child Custody Determinations in California
In divorce cases involving children, courts are tasked with distributing and assigning parental rights and responsibilities regarding the care and custody of their children. During marriage, both parents typically live with the child, easily sharing parenting responsibilities. After divorce, a child’s parents live separately, but still have the same rights and responsibilities concerning raising their children.
In California, child custody determinations vary from case to case. However, custody arrangements can be categorized into different types:
- Joint Physical Custody: Both parents share roughly the same time living with the child, often alternating days during which the child lives with them.
- Sole Physical Custody: The child primarily spends most of the time living with one parent compared to the other parent.
- Joint Legal Custody: Both parents have the right to make legal decisions for their children. Matters such as education and medical treatment must be approved by both parents.
- Sole Legal Custody: Only one parent has the right to make legal decisions for the child.
California courts are legally required to make custody decisions based on the child’s best interest but have broad discretion when assessing factors in deciding what custody arrangement serve’s the child’s best interest.
Courts in California have considered a parent’s ability to provide a child with continuity of attention, nurturing, and care. Persons who suffer from alcoholism often have difficulty prioritizing things above their addiction. Moreover, alcohol intoxication impairs a person’s judgment and inhibitions. As a result, alcoholics can act impulsively, which can lead to neglecting the needs of others, including one’s children. In many cases, alcoholism is closely linked to domestic violence.
The Legal Presumption Against Domestic Violence
A parent’s history of domestic violence is a factor that California courts must consider when crafting a custody order. Under California law, awarding custody to a parent with a history of perpetrating domestic violence is presumptively detrimental to the child’s best interest. However, the presumption can be rebutted by sufficient evidence demonstrating otherwise.
According to California Family Code § 3044, if the evidence supports a finding favoring sole or joint custody with a parent with a history of domestic violence, the court must make specific findings regarding the following factors:
- “The perpetrator has successfully completed a batterer’s treatment program meeting the criteria outlined Penal Code Section 1203.097(c).
- The perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
- The perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
- The perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
- The perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
- The perpetrator of domestic violence has committed any further acts of domestic violence.”
Restrictions on Parental Rights
Just drinking socially should not be an issue provided it does not have an impact on the child. If the other parent is able to provide the judge with “substantial evidence” of your alcohol problem, then this is an issue. Such evidence may include a history of DUIs, arrest record, texts where you admit to having a drinking problem, videos of you being drunk, out of control and slurring words, or videos of you around the child unable to properly care for the child, etc.
The spouse of someone with a drinking problem can file a motion to place the following restrictions on their parenting time:
- Submission to random alcohol testing
- Submission to alcohol testing by blowing into a “Soberlink” device
- Prohibitions on driving the child
- Third-party supervision of parenting time (by a parent, mutual friend, or professional supervisor paid by the parent suffering from alcoholism)
- Designation of a supervision facility for parenting time instead of the parent’s home
If your drinking rises to the level where you are putting your spouse or child in harm’s way, the other parent can obtain a restraining order restraining you from having any access to yourself or your child.
Before any of this happens, the key is to carefully assess your situation. If you are having a few glasses with friends while not with your child – fine. If you are unable to abstain from drinking while caring for your child- this is a problem.
Get Legal Advice from Fenchel Family Law
At Fenchel Family Law, we strongly suggest you meet with a family law attorney to learn about your rights and how to protect your parenting rights. Part of this plan will be to get help with your drinking problem- if it is a problem, so that your rights are never limited.
We have seen cases where the other parent claims you have a drinking problem when you do not in order to block you from parenting time. If you are in this situation, you must seek legal help so that your communications to your ex are not misconstrued and used against you. You must be careful if you are married to somebody that is actively trying to spread lies to harm your parenting rights. our legal team has years of experience handling cases involving California family law. You can benefit from the skill, experience, and knowledge our team of attorneys offers.
For an initial case consultation, call Fenchel Family Law at (415) 650-1112 or contact our office online today.