How to Get Sole Custody When Your Ex Is an Alcoholic

By Christine Funk, J.D.

How to Get Sole Custody When Your Ex Is an Alcoholic

By Christine Funk, J.D.

It can be difficult to gain sole custody of the children, even if your ex is an alcoholic. Parents must first determine whether they want sole physical custody, sole legal custody, or both. Next they must be able to prove the other parent is an alcoholic, and that their alcoholism is harmful to the children.

Mother with her arm around her daughter who is clutching a teddy bear points to another room as her husband looks at her with a wine bottle in his hand

Understanding Custody

There are actually two forms of custody the court considers when a couple with minor children divorce, or when addressing a custody modification request: legal custody and physical custody. Legal custody refers to a parent's right to make important decisions about the child's day to day life, such as where they go to school, what doctors they see, determining a certain course of medical treatment, religious instruction, and the like. Physical custody refers to which parent a child lives with most of the time. Both legal custody and physical custody may be joint, meaning the parents share the responsibilities, or solely awarded to one parent, meaning one parent makes the important decisions and cares for the child most of the time. Decisions about legal and physical custody are made separately. As such, parents may have any of the following arrangements:

  • Joint legal custody, while only one parent has sole physical custody
  • Joint physical custody, while only one parent has sole legal custody
  • Joint legal and physical custody
  • One parent has both sole legal and physical custody

It is relatively rare that one parent have both sole legal and physical custody of the children. If this is the case, however, the other parent will generally maintain visitation rights.

When One Parent Is An Alcoholic

While every state has its own laws governing how a court determines both legal and physical custody, universally, courts are mindful of an overarching policy of making decisions in the best interests of the children. As such, during divorce proceedings, the courts must consider each family's situation carefully. It will not be enough to assert that the other parent drinks too much. Instead, a parent must prove that the other parent has a problem that impacts their ability to properly care for the children. This can be a difficult battle.

Courts will consider evidence such as prior charges of driving under the influence of alcohol. Courts will also take into account that person's ability to maintain sobriety. If a parent lost a job, or has difficulty maintaining employment due to drinking, courts may consider that. At a hearing, the court will hear evidence in the form of testimony from witnesses who may have seen evidence of a person's alcoholic behavior.

A parent who knows their ex is an alcoholic should notify their divorce attorney who can bring it to the attention of the judge. This is important because it can be particularly challenging to modify a child custody order once the court has issued a decision. Typically, courts will only revisit the issue of child custody if there has been a change in circumstances. Consequently, to reopen a custody decision, a parent must provide evidence that things have changed since the court's initial custody decision.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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