How Does Alcohol Use Affect a Custody Award?

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Many adults drink in this country; some prefer beer, others wine, some “harder” liquor like vodka or bourbon. Sometimes people drink to the point they become intoxicated, but we do not classify them immediately as alcoholic or posing a threat to the welfare of their child. Where do courts draw the line on alcohol consumption when entering a custody award?

Recently, the Western District had a chance to consider this question in the case of Fessler v. McGovern. Mother and father met in 2006 and began dating; two years later they began living together, but never married. In 2010, mother gave birth to the parties’ child. After some rocky moments over the next several years, the parties separated in 2013. Two years later, father filed a paternity action seeking joint legal and joint physical custody of the child. Mother countered, seeking sole legal and sole physical custody of the child. At trial, mother testified that father consumes alcohol on a daily basis; when they lived together, he would go to his Lodge after work and drive home before passing out after a night of drinking. Mother noted he passed out once in the kitchen, another on the recliner, once in the garage while sitting in his idling truck, and once in the bathtub with the water running to the point it flooded the bathroom. Mother worried that if the child stayed overnight with father, father could not wake up to tend to the needs of the child who has a history of difficulty sleeping. Father claimed he drank heaviest in his relationship with mother, but that he never drank to the point it affected his daily obligations. He had no record of driving-related offenses though he admitted he had operated a motor vehicle after consuming alcohol. He admitted he still drinks daily. No one testified that father consumed alcohol in the presence of the child or during any period of custody. The guardian ad litem testified that father has a consistency in his alcohol consumption, still nightly, though never when he has custody of the child. The GAL worried about the child adjusting to overnights, so recommended daytime visits that transition into one overnight to full weekend custody. The trial court adopted the recommendations of the GAL and gave mother sole physical custody and for the first six months father would have every other Saturday for eight hours in the day; afterward, visits would be Friday through Sunday. No custody would take place if father smelled of alcohol at the time of exchange.

Father appealed, arguing that his alcohol consumption had no bearing on his ability to exercise physical custody. The Western District noted that the custody statute allows the court to consider the physical health of the parents and the overall best interests of the child. The trial court did not focus exclusively on the alcohol consumption, but rather stressed the two year absence of father exercising custody and the minor child’s difficulty with sleep. The appellate court noted that a parent’s willingness to drive under the influence – a crime – can be a factor that bears on the safety and welfare of the child. Alcohol consumption alone cannot cost a parent custody, the court held, but evidence that frequent consumption and impairment could put the child at risk in the care of the drinking parent can constitute a basis for limited custody. The Western District stressed the trial court did not ban permanently overnights but gave a transition that allowed father to demonstrate sobriety and responsibility.

This case shows precisely how a court should consider significant alcohol consumption in making a custody award, and should serve as a warning to parents who consume enough alcohol on a regular basis to become intoxicated.

If you have questions about alcohol consumption and custody, contact us – we can help.