How does my spouse’s DWI affect child custody?

When you and your spouse or partner decide to part ways, you will have many concerns, particularly if you have kids together. Your primary concern will be their well-being and maintaining your relationship with them.

When child custody matters and a drunk driving record intersect

Are you fighting for custody of your children? Do you fear your soon-to-be ex-spouse’s alcohol related behaviors or DUI or DWI conviction will put your children in danger?

A drunk driving conviction on your spouse’s record doesn’t automatically disqualify them from gaining custody or having possession of the children. However, it will be a factor that the court takes into consideration. How seriously it affects the final decision depends on a number of questions, including:

  • How long ago was the conviction? The court will take a drunk driving conviction less seriously if it happened more than 10 years ago or before a child was born.
  • What has your spouse done since the conviction? A parent who is recovering and currently sober does not necessarily pose a risk to your children.
  • Was it a one-time offense? Multiple DUI or DWI convictions may hurt your spouse’s chances of custody or possession of your children, especially if your spouse is continuing to abuse alcohol or drugs.
  • Is there evidence of addiction? If your spouse has a history of substance abuse, this does not automatically bar them from having custody or possession.
  • Is your spouse currently sober? A sober parent will not be judged on past addictive behavior alone.
  • Is your spouse taking steps toward sobriety? If your spouse is in denial about a drinking problem, there are steps the courts can take to protect the children from an impaired parent, such as conditioning possession on clean drug or alcohol tests, requiring a drug treatment program or other steps to maintain sobriety. The focus will be on steps to protect the children.
  • Did the DWI occur while your child was in the car? A DWI with a child under the age of 15 in the car is not only a felony in Texas, the family courts will consider this type of conduct potentially restricting or denying access to a child.

The court’s primary concern is to create a parenting arrangement that’s in the best interest of the child. As part of the process, the court will investigate whether you or your ex are “unfit parents.”

This issue is not black-and-white. Each child custody case is unique. A criminal history may be a factor that is taken into account in determining custody as well as possession and access to your child. Don’t face this challenge without legal counsel.

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