Visitation and the alcoholic parent

Posted Friday, April 24th, 2009 by Gregory Forman
Filed under Law and Culture, Not South Carolina Specific, Of Interest to General Public, Visitation

If we accept that alcoholism is a disease (which I do), the cure is simple: don’t consume alcohol. I have happily represented many outstanding recovering alcoholic parents in family court and some of these parents have obtained custody of their children and done a fantastic job raising them. Note the word “recovering” alcoholics. The alcoholic parents whose representation I considered to be successful were in recovery and were committed to not drinking.

In too many cases I have observed alcoholic parents who were not in recovery destroy their custody case (and their relationship with their children) by continuing to drink. I cannot say that every parent I have dealt with who had a history of alcohol abuse and continued to drink destroyed their case but I believe this may be due, in part, to the fact that I only observe such parents for a period of a few months to a few years and they will be parents of minor children for 18+ years. I suspect if I followed them throughout their child(ren)’s minority, eventually their alcohol use would result in an action or behavior that would undermine their relationship with their children.

A common concern in custody and visitation cases in which one parent is an alcoholic is what to do about that parent’s visitation and how to monitor problems that may arise due to that parent’s use of alcohol. It is grossly unfair to require the other parent to monitor the alcoholic parent’s drinking: often that parent has spent years in an enabling relationship with the alcoholic parent and has turned to the family court so as to stop further enmeshment in the alcoholic parent’s drinking. Yet visitation orders that simply prohibit the alcoholic parent from drinking around the child (or when they have the child, or within twenty-four hours of a visit) simply continue this entanglement: the other parent must continuously monitor the alcoholic parent’s drinking. The typical result is frequent trips to the family court where the parents argue over whether the alcoholic parent was drinking or when the alcoholic parent was drinking. Since such determinations ride on credibility determinations, and since credibility determinations often require lots of witnesses and lots of cross-examination of these witnesses to test credibility, these hearings require substantial docket time and the court is often loath to devote substantial docket time to these issues–especially when the same issue (alcoholic parent’s drinking) keeps arising. Frequently these cases do not resolve until the alcoholic parent’s drinking becomes well documented through an alcohol-related accident–and we can only hope that the children are not around when this accident occurs.

Sometimes the court puts a little more “teeth” in its order by allowing the other parent to request random alcohol testing of the alcoholic parent. However, so long as the court’s order allows the alcoholic parent to consume alcohol at some times (when the child is not around) but not consume it other times, this does not remove the credibility problems noted above: now the parents are simply fighting over when the alcoholic parent was drinking.

It strikes me that the solution to this problem is both simple and elegant and I wish more family court judges had the courage to implement it: simply require an alcoholic parent who wishes to have visitation with his or her child to stop drinking period. I realize and respect that family court judges are loathe to restrict an adult’s legal activities more than is absolutely required. However, if we are going to treat alcoholism as a medical issue, rather than a moral issue, then I believe such a broad restriction is justified. Only by committing to sobriety can an alcoholic parent be safely around his or her children. Further, it is unfair to require the other parent to monitor the drinking of the alcoholic parent when the alcoholic parent wants a relationship with the child(ren) but is unwilling to commit to sobriety.

If I were a family court judge every alcoholic parent would be given a stark choice: alcohol or your children. If the parent chose alcohol, he or she would not receive court-ordered visitation (I would leave the visitation in the discretion of the other parent and trust that the other parent would allow whatever visitation he or she felt was productive and safe for the children). If the alcoholic parent chose visitation they would be ordered not to drink period. I would allow the other parent to obtain random alcohol testing and one failed test would result in visitation being terminated pending further court order and would result in potential criminal contempt (that is the alcoholic parent would be subject to incarceration for drinking).

While such a choice seems harsh it is actually most reasonable. Almost all non alcoholic parents, given a choice between alcohol and their children, would choose their children; it would not even be a difficult decision. Yet we are unwilling to require alcoholic parents to make this choice. These are the very parents whose history suggests that their being required to make such a decision would lead to greater harmony and family stability. Every case in which I have seen the judge require such a choice resolves rather quickly and leads to stability: either the alcoholic parent chooses alcohol, the alcoholic parent refrains from drinking or the alcoholic parent is caught drinking and visitation stops. The cases in which the court does not require such a choice lead to endless litigation. How much simpler it would be if the family court uniformly implemented this solution.