DUI and Family Law

DUI police officer

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Introduction How a DUI Can Affect Legal Decision Making for a Parent

Legal decision making is determined on a case by case basis and the judge will take a lot of factors into consideration when making this determination. Alcohol and drug use often times play a large role when the court is determining custody of your children and how active you can be in the decision making process for your child. If you have received a recent DUI (driving under the influence) the court will likely view this more harshly than if you received a DUI ten years ago and have been sober ever since. Even though receiving a DUI may not be grounds to have a child take away from a parent when the court is not already involved, receiving a DUI during a divorce or child custody proceeding will greatly affect the decision. Once the court steps into your life to make determinations about your divorce and children, you will be put under much greater scrutiny than if the court was not already involved.

Legal Decision Making

Even though the majority of people still refer to the concept as child custody, the new term to determine where the child or children will be living or visiting is called parenting time. There are so many different combinations of parenting time available and either the parents or the court can make this determination if the parents cannot agree. First of all, legal decision making is the obligation either one or both parents have in regards to the child’s upbringing.[i] These decisions will include what school the child attends, medical decisions, where the child lives, and what religious faith to bring the child up in, if any.[ii] It is important to note that even if one parent has legal decision making and does not need to consult the other parent, if that parent wants to move out of state with the child – they will still need to petition the court to receive approval of that move.

legal decision makingThere are a few ways that legal decision making can be divided between the parents. First off, there is sole legal decision making.[iii] What this means is that one parent is able to make all the above listed decisions without consulting or agreeing upon those decisions with the other parent. For example, if one parent is insistent upon the child going to a private school for their education, but the other parent wants the child to attend public school closer to their home, the parent with the sole legal decision will be able to make the final decision. This is the same for medical decisions, religious decisions, and locations of where the child lives. These types of life choices for the child are crucial to their upbringing; the court is weary upon granting sole legal decision making to one parent unless the court determines that the excluded parent is unstable or unfit to make decisions for their child.

There is also joint legal decision making.[iv] Joint legal decision making is broken down into two types: just standard joint decisions and joint decisions with one parent as the final say. With joint legal decision making, the parents have to decide on the major life choices before one parent can implement the change proposed. Now, considering these adults are no longer together for one reason or another it is not uncommon for parents to disagree about these decisions. For those scenarios, there are a lot of options for parents to try and work out the decision. They can go to a mediator, who is a neutral third party representative who can assist the parents in coming to an agreement about the argued point.[v] If a mediator does not work, the parents can use the legal system and petition the court to make the determination for them. This is not an uncommon issue between parents who have joint legal decision making.

There is also an option for the court to grant both parents legal decision making power, but take that one step further and give one parent final say.[vi] What this does is promote the parents to discuss the issues and hope to come to a conclusion. However, if the parents cannot decide, one parent will have the ability to make the decision with their final say. This also provides a way for the parents to eventually get to a decision, even if one parent is not happy with the outcome – but at least the parents did not have to go through the legal system since they could not come to a decision. This allows the child to proceed with the decision of one parent, rather than waiting on the court to make the decision for them (which could cause the child to miss the event itself). There is also a chance that the parent without the final say will want to change that, but at least for the time being the parents will be able to make decisions for the child without any further interference from the court.

The Affect of Alcohol on the Court’s Decision

There are many factors for the court to consider when it comes to deciding how legal decision making will be divided between the parents of the child. There is a lot more scrutiny on each parent and their actions, especially actions within a few years of the courts involvement with case. One factor that will always be incredibly important and crucial for the court to consider is what is in the best interest of the child. If it is in the best interest of the child for only the mother to make the decisions in the child’s life, the court will likely grant sole legal decision making to the mother. Some things that could cause this to happen would include alcohol or drug abuse issues, or criminal arrests or charges with drugs or alcohol. A DUI charge could affect sole legal decision making, and even parenting time with your child. Even if the parent who was arrested for drinking and driving goes through a diversion program to avoid having the charge on their record – the court is going to still consider the fact that the parent was drinking and driving.

getting pulled over by copsEven though drinking and driving is unfortunately a frequent occurrence, there is still a lot of stigma when it comes to individuals who have been arrested for drinking and driving – and rightfully so. The court also takes this incredibly seriously. As a society, we do not view a person who has been drinking and driving as a responsible adult.[vii] We especially do not view a person who has been drinking and driving a responsible parent.[viii] Someone who we would ordinarily view as parent of the year would immediately have their ability to parent put into question if they were arrested for drinking and driving.

This is not always the case. Life happens, and sometimes people drink and drive. In our society where 1.1 million people were arrested for driving under the influence of drugs or alcohol, it can happen to just about anyone.[ix] Among the 1.1 million people who are arrested each year, there are probably thousands of individuals who are pulled over on suspect of drinking and driving and who fall within the legal limit for blood alcohol concentration. Even those people who are pulled over and let go may have that incident brought up into court and have it be used against them when it comes to determining parenting time or legal decision making.

It is also possible that a DUI or drug arrest may not be brought up at all during the divorce proceeding or custody battle. As previously stated, the court system does not HAVE to get involved with every divorce and every custody decision. The court can sit back and have the couple work out all of the details through mediation or negotiations between their attorneys. In those scenarios, the court will just be there to provide a decree for the couple to make sure that their previously agreed upon arrangement is followed.[x] This is known as a Rule 69 agreement and even though the parties to the agreement made all the decisions contained within that agreement and not the judge – it is still legally binding.[xi] In those scenarios, the parties may know that dad or mom has a DUI or a drug charge way back when, but decide that they are okay with the parent being apart of the decision making process and they are okay with the child spending time with that parent. The court will have a much higher scrutiny when it comes to these scenarios, but the parents also have the ability to make the decision without the court and determine what they think is best for their child under the circumstances.

Conclusion to How a DUI Can Affect Legal Decision Making for a Parent

Legal decision making is determined on a case by case basis and a lot of factors go into that decision, including whether or not one (or even both parents) have an alcohol or drug conviction on their record. Society views alcohol and drug arrests and convictions very harshly, and so does the court system. Even just an arrest, and not a charge, could play a huge role in the judge’s decision on your case.

It is important to note that everything related to parenting time, child support, alimony, and property division can be decided upon between the two parties. The court will not get involved with these matters unless petitioned so by the court – unless there is an extreme circumstance, which rarely happens. If the parties involved cannot come to a decision about legal decision making or parenting time/custody, then the court is going to step in – and the court is going to use a much higher scrutiny when looking at past alcohol or drug convictions.

Additional Resources

[i] See The Different Types of Custody NOLO Legal Encyclopedia (Accessed August 8, 2016) http://www.nolo.com/legal-encyclopedia/types-of-child-custody-29667.html

[ii] Id.

[iii] See What is Parenting Time? Arizona Department of Economic Security (Accessed August 8, 2016) https://des.az.gov/services/child-and-family/child-support/arizona-child-support-parenting-time-and-legal-decision

[iv] Id.

[v] See Child Custody Mediation FAQ Find Law (Accessed August 8, 2016) http://family.findlaw.com/child-custody/child-custody-mediation-faq.html

[vi] See What is Parenting Time? Arizona Department of Economic Security (Accessed August 8, 2016) https://des.az.gov/services/child-and-family/child-support/arizona-child-support-parenting-time-and-legal-decision

[vii] See DUI & Child Custody –  More than Just Money? Divorce.com (Accessed August 9, 2016) http://divorce.com/dui-child-custody-more-just-money/

[viii] Id.

[ix] See Impaired Driving: Get the Facts Centers for Disease Control and Prevention (Accessed August 9, 2016) http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html

[x] See What is “Rule 69 Agreement” and How Do I Get Out of It? Modern Law (Accessed August 9, 2016) https://mymodernlaw.com/what-is-a-rule-69-agreement-and-how-do-i-get-out-of-it/

[xi] Id.[/fusion_text][/one_full]