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Alcohol Use Disorder: What You Need to Know for a Custody Case

Alcohol Use Disorder (AUD) is a chronic disease characterized by excessive drinking and a preoccupation with alcohol. Because it is a chronic condition influenced by one’s genetic makeup, AUD is not uncommon.

In the U.S., AUD affects around 1 in 5 men and 1 in 12 women, totaling 15.1 million U.S. adults. However, of that number, only 1.3 million, or less than 10%, seek specialized treatment for effective alcohol monitoring. Around 10% of U.S. children live with a parent who experiences symptoms of AUD.

Drinking to excess can lead to increased aggression, mental impairment, slowed motor functions, and memory loss. For these reasons, excessive alcohol intake has been directly linked to 3 million deaths per year globally. Unmonitored alcohol consumption can create risk to children. 

Yes. If a parent’s alcohol use is connected to behaviors that have put the children at risk, or are highly likely to put the children at risk, a judge can impose conditions on the affected parent’s parenting time. For example, a parent may not have extended periods of time or may not have overnight time if that parent’s ability to care for the children is in question. If the alcohol use has resulted in inappropriate parenting in the past, such as neglect or violent outbursts, there may also be issues of whether a child feels safe with that parent and may lead to the child becoming resistant to parenting time with that parent.   

Additionally, in Arizona, A.R.S. §25-403.04 says that if a judge determines that a parent has abused drugs or alcohol or has been convicted of certain drug or DUI offenses within twelve months of a request for legal decision-making there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child’s best interests.

If alcohol use disorder is proven to be a valid concern, a judge could order any of the following:

  1. Order the parent with the condition to refrain from drinking during their parenting time and order that parent to engage in some sort of testing to demonstrate his or her sobriety;
  2. Order the parent with the condition to abstain from drinking at all times regardless of whether they are exercising parenting time or not (although this is less common, as alcohol is not an illegal substance);
  3. Order the parent with the condition to engage in some kind of alcohol treatment program before exercising unsupervised or extensive parenting time;
  4. Order the parent with the condition to engage in a variety alcohol testing methods for a significant period of time (sometimes more than a year) to demonstrate long-term sobriety.

There are several possibilities:

  • Several organizations offer personal breathalyzers that can test for alcohol at any time of the day. Soberlink is a commonly used organization that offers this type of remote alcohol monitoring. Users can submit scheduled tests either every day or during parenting time only, with their results shared with everyone on their Monitored Agreement in real-time.
  • Lab facilities offer urine and blood testing that can be done on a random or pre-set schedule, which requires appearing as scheduled at the testing facility.
  • Many lab facilities and doctor offices now offer a P-Eth blood test that can determine whether binge drinking has occurred within the last 4 to 5 weeks.

Soberlink offers free alcohol monitoring and remote testing devices for qualifying participants through its Family Assistance Program.

In a custody proceeding, the other parent may be ordered to pay for the testing, or joint savings (community money) may be used to pay for it. Low income families may also qualify for financial assistance from the Court to pay for alcohol testing.

If you are under a court order to test and you do not show up, or you have a diluted test these are both considered positive results. 

If a parent is ordered not to drink and then tests positive for alcohol use, then they are in violation of a court order. However, the consequence for a positive test is often laid out in the order requiring a parent to test. Those consequences may include automatic suspension of parenting time, an automatic change to supervised parenting time, financial sanctions, expansion of the testing orders (more often or longer term), or a treatment program being imposed.

It depends on the type of test and your goal.

For example, the effectiveness of urine testing or blood draws at TASC (or a similar agency) is highly time dependent because these tests only detect alcohol within 24-48 hours after a drink is consumed.

This can be problematic because weekend testing is usually not available. A person who consumes heavily on Friday night may not be tested until Monday afternoon which may give their body enough time to process the alcohol out of their system and avoid a positive result. While urine and blood screening tests accurately detect alcohol usage, the timing of the test is exceptionally important. Blood and urine tests can accurately detect alcohol usage, but only if the test occurs within a day or two of the drinking.

In many ways, having someone test using an at home breathalyzer test, such as Soberlink, multiple times per day provides a far more reliable indicator of whether a parent is drinking. Soberlink requires a set fee depending on how often you test, but you can pay for unlimited testing.

With multiple daily tests, it is extremely difficult for a person to hide their drinking. Someone who has been drinking will often just skip tests because there isn’t a way around testing positive – the device uses facial recognition to make sure it’s testing the right person. These devices can be particularly helpful in exposing a parent who is a social drinker and only drinks outside of business hours because the tests can be performed during these times.

Recently, another test has emerged called the P-Eth blood testIt can determine if someone has engaged in binge drinking at some point in the last 4-5 weeks. The downside of the test is that it can’t tell you when the drinking occurred; it just tells you that heavy drinking occurred at some point during the last 4-5 weeks. This test can be very helpful in detecting binge drinkers who remain sober during work hours, but then drink heavily during their downtime. It will also catch someone who  drinks continuously on an almost daily basis. One study showed that for moderate to heavy drinking, this test will have an 85% reliability.  

There is always the possibility for a false positive. False positives can result using an at home breathalyzer from the mere exposure to alcohol that’s present in many daily use products, such as mouthwash and hand sanitizer. Blood and urine tests can result in false positives if a person drank too much water before testing.

If your co-parent accuses you of having alcohol use disorder, consistent testing can prove them wrong.  You can wipe out their credibility on this issue by sheer testing volume, and that may, in turn, affect how the judge sees your spouse’s credibility on other issues.  

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McCarthy Family Law is a full service family law firm that services all family law issues. If you are going through a divorce or have questions about filing for divorce, we are here to assist you. Please call us at 520-623-0341 to explore your options. Turning Stress Into Solutions®.