It can be extremely challenging to be in a custody battle with a co-parent who has an alcohol problem or other substance abuse issue. This is particularly true when they refuse to acknowledge the issue or downplay or hide it. Unless your ex shows up in court drunk or high or they have a history of DUIs, it can end up being a “he said/she said” situation with the judge not knowing whom to believe.
So, what happens if you believe or know that your ex is drinking or using drugs to the point where they’re endangering or neglecting your children (or run the risk of doing so)? When you’re trying to make your case, you need to know the difference between what evidence is admissible in court and what is hearsay.
What evidence is admissible?
As in any courtroom situation, hearsay is typically not admissible. That’s because it’s based on something said out of court. For example, if your ex’s brother told you that the two of them passed out after drinking through an afternoon of football games while your kids were there, and they later found the kids playing in the street, that would be hearsay.
If, however, the brother is willing to testify to that (or one of your children, if they’re able), that could be admissible evidence.
Are observations permissible?
Observations can also be a tricky thing. You could testify that your ex appeared to be drunk more than once when you picked up the kids. However, if you didn’t actually witness them consuming alcohol, that testimony likely wouldn’t be admissible.
One way that some parents resolve this issue is for the spouse with the alleged drinking issue to use an alcohol monitoring system. Depending on the court order, they may have to provide a test every day or only around their parenting time. These results are considered admissible evidence. There are also drug testing programs.
If you’re facing this issue with your co-parent, or if your co-parent is accusing you of not being able to care for your children because of a substance abuse issue, talk over the situation honestly with your family law attorney. They can provide you with valuable guidance and help you to do what’s best for your children’s well-being.