Alcoholism & Family Law: Step-by-Step Guide to Warning Signs, Testing and Monitoring

Originally Posted in the Tennessee Bar Journal

Posted by: Miles Mason on Jul 1, 2022

Journal Issue Date: July/August 2022 Journal Name: Vol 58 No. 4

Whether we call it alcohol abuse, alcoholism or alcohol use disorder, the overindulgence in alcohol by one or both parties in a divorce affects many family law cases. Family lawyers need to know about the prevalence, harm, warning signs, testing and monitoring of alcohol use. A central problem for courts is that there is currently no testing available to detect the difference between alcohol usage and alcohol abuse that impacts parenting.

Correspondingly, a central problem for family lawyers is that judges handle claims of alcoholism much differently based on personal experiences and knowledge gained from prior family law cases. For example, one judge may be conservative, restricting parenting time upon the claim of alcohol abuse and requiring the accused parent to disprove the claim (placing the burden of proof on the accused parent). Another judge may require the claiming parent to prove the claimed drinking takes place during parenting time and that there is evidence of substantial risk of harm to the child. Until a particular fact pattern is presented to a particular judge, a family lawyer cannot know the outcome of any particular hearing. This article is written to help the family lawyer with preparation for court hearings and settlement of claims of alcohol abuse by parents. Alcoholism Statistics Family Lawyers Should Know

• Alcohol misuse and abuse may have long-term medical, economic, social and criminal consequences. Statistics bear this out:

• There are 95,000 alcohol-related deaths in the U.S. every year.1

• Alcohol is the most commonly abused drug in the U.S.2

• Men are three times more likely than women to die from alcohol abuse.3

• 18.1% of people who die from alcohol use disorder (AUD) and alcoholism are under the age of 35.4

• Alcohol-impaired driving fatalities accounted for 28% of overall driving fatalities in 2019.5

• During COVID-19 lockdowns, 60% of people increased their alcohol consumption.6

On the pandemic-coincident increase, Memphis testing expert Kelly Dobbins,7 owner of Mid-South Drug Testing, discussed how scared people were during months of lockdowns — stuck at home, not going to job sites, not seeing friends and coworkers, not blowing off steam. “When you’re home, you put your pajama bottoms on and you crack open a beer. So it doesn’t surprise me that most people said they gained 20 pounds, they call it the ‘COVID 20,’ and that drinking increased.”

Does Alcoholism Affect Child Custody?

• 12.1% of U.S. children live with at least one parent who has AUD. Of those children, 18.7% live in singleparent households.8

• Of children living in single-parent households, 47.6% are more likely to live with an alcoholic father than mother. 9.3% of single dads are alcoholic compared to 6.3% of single moms.9

• In the U.S., 9.5% of pregnant women between the ages of 15 and 44 used alcohol in the past month.10

• It is estimated that 1% to 5% of first grade children in the U.S. have fetal alcohol spectrum disorders (FASD).11

It is essential that a parent’s alcoholism is detected and treated in order for their children to thrive. What Are the ‘Red Flags’ of Alcohol Abuse? The more common physical, psychological and behavioral signs and symptoms of alcohol abuse are:

• Poor coordination;

• Slurred speech;

• Impaired thinking;

• Impaired memory;

• Wanting to stop drinking but not managing to;

• Diverting energy from work, family and social life to drink;

• Being secretive about the extent of one’s alcohol abuse to protect it;

• Engaging in risky behavior, such as drunk driving;

• Being in denial about the extent of the alcohol problem; and

• Becoming distressed at the prospect of not getting alcohol.12

Freeing oneself from the clutches of alcoholism is no easy task. Family lawyers can help by setting the stage for success.

What Does Psychology Say About Alcoholism and Addiction?

Alcohol abuse and addiction are recurring issues in family law. Alcoholism is treatable. In divorce and custody proceedings, in-patient and outpatient treatment arrangements for spouses, parents or minor children can present a number of challenges. Effective treatment programs are not one-size-fits-all. Each program must be designed for the individual. The two mainstays are that every treatment program start with medical and psychiatric screening and that each phase of recovery be matched with resources that can provide continuity of care.

The alcoholic’s body and brain will need time adapting to the absence of alcohol. People need to be treated for withdrawal’s attendant physical and emotional symptoms. They need to remain in a treatment program in which prolonged abstinence allows for brain recovery. They need to adopt avoidance techniques to prevent relapse. At any given time, treatment will include:13

• Detoxification under medical supervision;

• Medication (for withdrawal symptoms, anxiety, depression and abstinence management);14

• Motivational enhancement therapy (short-term counseling to encourage change);

• Cognitive-behavior therapy (recognize triggers and develop coping skills);

• Group therapy and peer support programs (12-step or Alcoholics Anonymous);

• Family therapy (repair relationships);

• Life skills training; and Monitoring.

The Surgeon General’s Report on Alcohol, Drugs and Health15 is one of many resources for family lawyers grappling with the scope of substance use disorder treatment in their clients’ cases. According to the report: Insurance coverage for substance use disorder services is becoming more robust as a result of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA) and the Affordable Care Act. The Affordable Care Act also requires non-grandfathered individual and small group market plans to cover services to prevent and treat substance use disorders.

How Serious Is Relapse to the Recovering Alcoholic?

Relapse is always possible with addiction. Because alcohol is legal and readily available, relapse rates are likely higher than with illicit drug use. Sobriety and time are what matter most. Someone in remission for five years has no greater likelihood of relapse than those in the general population.16 The best way a person can avoid relapse is to steer clear of alcohol and the “stress cues” or triggers that motivate drinking. These include avoiding certain people, certain places, certain moods and other things.17

Alcohol Detection, Confirmation Through Testing, Then Treatment

When a spouse is suspected of abusing alcohol, the National Institute on Alcohol Abuse and Alcoholism (NIAAA) lists the following questions based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).18 Has the person:

• Had times of drinking more, or longer, than intended?

• More than once wanted or tried to cut down or stop drinking, but could not?

• Spent a lot of time drinking, being sick from drinking or getting over after-effects?

• Wanted a drink so badly, they couldn’t think of anything else?

• Found that drinking, or being sick from drinking, often interfered with taking care of home or family? Or caused job troubles? Or school problems?

• Continued to drink even though it was causing trouble with family or friends?

• Given up or cut back on activities that were important, interesting or pleasant in order to drink?

• Gotten into situations more than once while drinking or after drinking that increased the risk of getting hurt, such as driving, swimming, using machinery, walking in a dangerous area or engaging in unsafe sexual behavior?

• Continued to drink even though it was making the person feel depressed or anxious or adding to another health problem? Or after having had an alcohol-related memory blackout?

• Had to drink much more than before to get the desired effect? Or found the usual number of drinks had much less effect than before?

• Experienced withdrawal symptoms as the effects of alcohol wore off, such as trouble sleeping, shakiness, restlessness, nausea, sweating, racing heart, dysphoria, malaise, feeling low, seizure or sensing things that were not there?

• Alcohol use disorder is confirmed with alcohol testing.

How Long Can Alcohol Stay in Your Blood?

Generally, the body metabolizes one ounce of alcohol every hour. There is about an ounce of alcohol in one 12 fluid ounce regular beer, a 5 fluid ounce glass of 12% alcohol wine, a 3 fluid ounce glass of 17% alcohol fortified wine and a shot of 80-proof spirits (1.5 fluid ounces of hard liquor).19 The body does not distinguish between beer, wine or liquor. In theory, a person could consume beer every hour and never be drunk, yet there are other factors at play.

A person’s sex affects the rate at which alcohol is eliminated from the body. For physiological reasons, men and women metabolize alcohol differently. When a man and woman weigh the same and drink at the same rate, the woman will attain a higher Blood Alcohol Concentration (BAC) than the man. Males metabolize alcohol faster and more efficiently than females for several reasons. Men have alcohol dehydrogenase (ADH) in the stomach while women have little stomach ADH. Although both sexes have liver ADH, the liver ADH in men is more active than in women.20 Body water automatically dilutes alcohol, but women have less body water and a greater percentage of body fat than men. Also, women in their child-bearing years or who take medication with estrogen metabolize alcohol more slowly.

What Factors Affect BAC?

Many factors affect blood alcohol concentration. How much alcohol was consumed in what time period? Did the person eat anything before drinking alcohol? The person who drank on an empty stomach could have a BAC three times that of the person who drank after eating a meal.21 Typically, two glasses of wine over two hours’ time with dinner is fine for most people. The body has time to metabolize the alcohol with the food.

Does Water Flush Out Alcohol?

Attempting to flush alcohol out the body by drinking copious amounts of water or coffee is not effective. Alcohol dehydrates the body and drinking water rehydrates. But the liver must metabolize the alcohol before water can flush it out. Although coffee will make the person feel more awake, coffee is a diuretic that compounds dehydration. Besides, as Dobbins noted, “coffee just makes you a sober drunk!”

Alcohol Testing in Child Custody Cases

In child custody cases, there are a lot of “bests” to negotiate with alcohol testing—best specimen collection, best test method, best test timing, best test pricing and, ultimately, best interests of the child. If parenting time is contingent upon total abstinence from alcohol during visitation, then alcohol testing is the best way to monitor and ensure compliance with the court’s order. An independent child custody evaluator’s report and recommended monitoring program will be very influential.

Is There a Test for Alcohol Dependence?

Many tests are available for detecting alcohol use and abuse. Toxicology tests detect direct alcohol biomarkers—the direct products of alcohol metabolism. These biomarkers include PEth (phosphatidylethanol), EtG (ethyl glucuronide) and EtS (ethyl sulfate). One testing method that detects the presence of ethanol and estimates blood alcohol concentration (BAC) would be the breathalyzer.

What are the Different Types of Alcohol Tests?

Alcohol testing in family law cases typically uses urine, blood, hair, nails, breath and saliva. The attorney must first define what needs to be discovered through alcohol testing and then choose the specific test.

What Do We Want to Know From Testing?

• Was there any use at any time by the party?

• Has the party consumed alcohol over the last three days?

• Does the party even have an alcohol problem?

• Has the party used alcohol over the past 90 days?

• Is the party a binge drinker?

Tip: How far must the test look back? Remember “3-3-3” for three days, three weeks or three months.22

What Is the Most Economical Alcohol Testing Available?

Testing costs add up quickly. When testing is too expensive or inconvenient, many parents will find it difficult to comply with the court’s order. The EtG/EtS urine test is the least costly method of detecting alcohol consumption and is most widely used in family law.

From the lawyer’s perspective, the EtG/EtS urine test is the best choice for detecting drinking during parenting time. For monitoring, urine testing should be scheduled for twice a week. For example, Parent B is tested on Thursday. On Friday, Parent B picks up the child for weekend parenting time. On Monday, Parent B is tested. The EtG/EtS urine test indicates whether Parent B consumed any alcohol during the three days of parenting time.

How Does EtG and EtS Urine Testing Work?

An EtG/EtS urine test will detect light and heavy drinking. EtG is ethyl glucuronide. EtS is ethyl sulfate. EtG can be detected in urine for up to 80 hours.23 Did the person drink a glass or two of wine with dinner? The EtG/EtS urine test will still detect it. The test methodology is instant, on-site (immunoassay) or lab-based. Detection Window: 80 hours, or three days, prior to specimen collection. Collection: The donor urinates into a small container. There must be a rest room, although donors are not always observed or monitored. Pros and Cons: EtG/EtS urine testing is cost-effective, accurate, provides immediate results and is great for random testing. The test is sensitive enough to detect lower levels of alcohol consumption. Awkward for some, it can cause “shy bladder syndrome.” Considered the easiest test to cheat, there are adulteration and substitution issues. Also, collector training is required.

Can a Blood Test Show Heavy Drinking?

Judges frequently order PEth testing of blood. The PEth test is used to detect heavy alcohol consumption.24 If the family lawyer is attempting to show the party is a heavy drinker or binge drinker, then PEth testing is the right choice. Binge drinking for men is drinking five or more standard drinks (four or more for women) on the same occasion on at least one day in the past 30 days.25 Understand, the person must achieve significant BAC to produce positive blood PEth values. To confirm recent drinking, a positive PEth test is followed by a positive EtG/EtS urine test.

How Does PEth Blood Testing Work to Detect Alcohol?

PEth testing will show whether the party drank heavily in the past three weeks. PEth is phosphatidylethanol, a direct biomarker of ethanol alcohol consumption. Direct biomarkers only form after a person has consumed alcohol. PEth is created in blood cells and is part of the cell membrane. The PEth test can differentiate between incidental exposure and intentional use of ethanol. Detection Window: Three-week period prior to collection. All that can be learned from a positive PEth test is there was heavy drinking sometime during the three-week period, but it will not show whether it was a binge weekend or daily heavy drinking. Collection: Dried blood spot collection or venipuncture. Pros and Cons: A lancet to the finger for a drop of blood is much less invasive than venipuncture, or blood draw, requiring a nurse (or phlebotomist). PEth testing is used primarily in the recovery field as a predictive marker of relapse. If the person quit drinking, PEth is a good indicator that the person “fell off the wagon” and started drinking again. What Family Lawyers Must Know About Hair and Nail Testing for Detecting Alcohol Ingestion Hair testing and nail testing are more costly than urine testing but can prove alcohol use over a longer period.

How Does EtG Hair Testing Work for Detecting Alcohol?

EtG in hair provides an extended view of long-term alcohol consumption but may not catch the occasional user. Detection Window: Testing detects multiple occurrences of high alcohol consumption in the three-month period preceding collection. However, it will not detect recent use in the one to seven days preceding collection. Collection: The hair sample is cut from the hair shaft at multiple locations. The hair follicle is not tested, and hair is not plucked to collect the follicle. No restroom is needed for this. Pros and Cons: Hair testing cannot determine when the person used alcohol in that 90-day window. And because the methodology is laboratory based, immediate results are not possible.

How Does EtG Nail Testing Work for Detecting Alcohol?

Our hair and nails are made up of keratin. Substances pass from blood vessels below the nail into the keratin fibers where they are trapped. Given the fingernail is four times thicker than a strand of hair, it captures more of a substance. EtG nail testing detects biomarkers locked in the keratin fibers along the entire length of the nail. Biomarkers in nails can be found one to two weeks after alcohol consumption. Detection Window: Multiple occurrences of high alcohol consumption can be detected in the three-month period preceding collection. A positive result may indicate six or more high alcohol consumption occurrences in 90 days. Collection: The donor clips his or her nails from all 10 fingers or toes in front of trained staff. Pros and Cons: Nail samples are simple to collect, ship and store. As with hair testing, EtG nail testing is lab-based and more costly than urine testing.

What About Using Breathalyzers to Detect Alcohol?

Breath testing with a breathalyzer is good for point of service testing because it provides immediate test results. Although not ideal for routine general testing, breath testing may be included in the child custody alcohol monitoring program.

Lastly, although saliva testing is less useful in court, it could be useful for on-site testing with rapid results.26 It is a preliminary test that, if positive, may warrant further testing.

How to Prove Alcoholism in Court for Custody Cases

Plan to collect evidence from a number of sources to prove alcohol abuse. These sources include:

• Testing positive for alcohol;

• Social media evidence of the person drinking, intoxicated or exhibiting poor parenting;

• Employment history of random test results;

• Job loss as a consequence of drinking on the job;

• Prior DUIs;

• Testimony from personal observation, such as friends and family concerned about the child’s safety and wanting the parent to “get help”; and

• Regular alcohol purchases with credit or debit cards.

• To prove the party is not a problem drinker, negative test results during monitoring can be entered into evidence at trial.27

Hire a Private Investigator to Prove Alcohol Abuse

Whenever parental fitness is an issue and the party is struggling to find evidence of AUD, hiring a private investigator (PI) may help. The PI can testify in court about the investigation and provide objective evidence from personal observation. For example, evidence the child was left alone for long periods, evidence of the parent drinking or evidence of empty liquor bottles in residential trash. If no unfitness is revealed, then concerns about the child’s safety may be quelled.

Has the client been falsely accused of child abuse or neglect? He or she may be vindicated with evidence collected during the investigation.

Hire a Medical Review Officer

In some situations, the family lawyer may need to involve an independent Medical Review Officer (MRO). The MRO is a licensed physician, independent from the lab, who is trained and certified to review lab results and validate whether a test is positive. For example, an MRO may communicate with the specimen donor and determine whether any valid prescriptions explain a positive test result.28

Drinking During Child Visitation

What’s the harm? Drinking can adversely affect an adult’s parenting ability. The court must protect the child from any harm that may result from the parent’s alcohol abuse.29

Alcohol Monitoring for Child Custody

In determining the best interests of the child, some states require that the judge consider a parent’s habitual or continual use of alcohol as a factor.30 Even if not specified in the statute, alcohol is a “relevant” factor the court shall consider. We also know that families with substance abuse problems may be involved in multiple court proceedings in criminal, dependency and family law cases.31

Court-Ordered Alcohol Testing

Alcohol is a legal substance. However, the court may restrict a party’s alcohol use as a condition for continued parenting time. Court-ordered testing is intended to verify sobriety 24/7 or verify abstinence during parenting time.32 Family lawyers should know how to draft parenting plans with morality clauses and alcohol restrictions.

The scope of these restrictions varies, depending on the specific circumstances:

• Minimal Restriction: Least restrictive terms in the parenting plan. May allow primary residential parent to suspend the other parent’s contact with the child and demand immediate testing.33

• Moderate Restriction: May require an alcohol evaluation and monitoring.

• Serious Restriction: May require supervised visitation.

• Severe Restriction: May prohibit contact between the parent and the child.

In the event of severe restrictions, L. M. Westreich, M.D., emphasizes how the “[forensic child custody] evaluator and monitor should be prepared to respond quickly to a slip or relapse, while remaining vigilant for exaggerated, inaccurate or even deceitful accusations about the subject from the co-parent or others.”34

What Goes into an Alcohol Monitoring Plan?

Most child custody cases involve some level of drug and alcohol monitoring with cost of testing being an important factor. The EtG/EtS urine test comes in at the low-cost end (under $100 per test in some areas). Hair testing and nail testing can come in at six times the cost as both require lab analysis.35 Hair testing may be needed following a positive urine test, but routine hair testing could exceed the family’s budget.

Monitoring during child custody must serve two objectives. The primary goal is safeguarding the child’s well-being—the state’s interest in protecting the minor child is paramount. The secondary goal is protecting the alcohol-involved party’s parenting time—each spouse has a fundamental right to parent the child.36

Again, start with the child custody evaluation. The evaluator should produce a “complete, fair, and transparent evaluation and monitoring plan” with the final report framed in DSM-5 terminology.37

• Include these elements in the child custody alcohol monitoring plan:38

• Define relevant substances;

• Construct a workable, effective testing protocol;

• Select random, scheduled or for-cause testing; and

• Define consequences of a positive or missed test.

For example, a positive or missed test could instigate the child’s immediate transfer to the other parent or safe environment. The person who received the positive test result notifies the other parent or other parent’s attorney so immediate action can be taken to safeguard the child.39

Negotiating an Alcohol Monitoring Plan

Family lawyers routinely assist clients in negotiating parenting agreements. Many of those agreements will include alcohol monitoring plans. The court’s order should include:

• Clear description of goals;

• Specific substances to be tested for (typically only the most problematic);

• How and when to be tested;

• Who pays for testing; and

• What happens with a positive or missed test?40

On the question of whether alcohol testing will be ongoing or only during parenting time, the judge will determine whether the parent is free to use alcohol while the child is not with him or her. Always ensure the draft mediation agreement or draft order is written clearly and plainly. Make it as easy as possible for the monitoring service to know how to schedule and comply with its terms. Furthermore, the plan needs to provide for changed circumstances. The party who did not abuse alcohol in the past may begin doing so. A parent may abuse differently, trading moderate daily consumption for binge drinking. Some adults shift to illicit drug use, which requires different testing. An adult may prove sobriety for years, too. Monitoring plans may need revising.

What Is Remote Alcohol Monitoring?

Two typical approaches to alcohol testing in family law cases both assume a degree of donor voluntariness for compliance. The first involves an actual visit to the collection facility, which may or may not be a lab. The second, remote alcohol monitoring, involves convenient real-time self-testing with a breath alcohol device (breathalyzer) at home, at work, while traveling and so on. In the child custody case, remote alcohol monitoring instantly verifies the donor-parent’s compliance or noncompliance with the court’s order to refrain from alcohol use. As a preliminary tool, remote alcohol monitoring can be used to establish whether the party even has an alcohol use disorder that should concern the court.

Monitoring services, such as CAMtech Monitoring41 and Soberlink,42 make it easy to sample breath before, during and after parenting time. For instance, Soberlink’s breathalyzer has a reported error rate within an acceptable range (+/- .005),43 uses wireless connectivity, is convenient to use, portable, discreet and includes facial recognition to confirm the donor’s identity.44 After every scheduled test time, notice of the test results and donor compliance is automatically sent to the monitor or concerned party.

This breath testing method will not show consumption once alcohol has completely dissipated from the body. But urine, PEth, hair and nail testing will detect biomarkers of past alcohol use. Some argue scheduled testing, as opposed to random testing, is a flaw that allows donors to beat the system knowing how the body metabolizes one ounce of alcohol every hour. A daily testing schedule of 9 a.m., 3 p.m. and 9 p.m., for example, “gives you a very high open window that you can drink,” says Dobbins. “If you know what you’re doing, you know how much you can drink and get away with it and always pass.” Recall that secretiveness to protect alcohol consumption is a symptom of abuse. The line between criminal and family law remote breath monitoring has blurred, although they share an essential objective—deterrence. The familiar ankle bracelet in criminal cases is a Secure Continuous Remote Alcohol Monitoring (SCRAM) transdermal device. A newer device is SCRAM Remote Breath®,45 an option for probation cases with low-risk recidivism. In some states, judges may order remote alcohol monitoring as a condition of probation and bond.

Michigan criminal defense attorney Mike Nichols offered this advice on his website regarding remote alcohol monitoring participation agreements, something equally applicable in family law:46 [T]he number one piece of advice for clients is “make sure you read the agreement, the test guidelines and ask questions.” You have got to wait after you give a sample and make sure it’s accepted and compliant. If something goes south—find a testing facility and provide a urine sample. The family lawyer who suspects alcohol abuse by one or both spouses must overcome the first hurdle—proving it. The second hurdle will be drafting the monitoring plan and negotiating a parenting plan agreement that encourages long-term sobriety and improved family stability. |||