As a family law attorney, I often have clients with children who are concerned about the other parent’s alcohol or drug use. In the past, I had to tell clients that an alcohol problem was actually worse than a drug problem, because it was more difficult to test for time specific alcohol use than for general drug use.*
Alcohol testing using a portable Soberlink device has made it possible to detect alcohol use by a parent in real time during periods of possession. It is now easier to test for time specific alcohol use than drug use. Soberlink provides the parent who is enjoined from drinking alcohol with a portable breathalyzer that automatically uploads the testing results to a website, and sends testing results to the other parent in real time. The breathalyzer has a camera that photographs the person taking the test, so a parent can’t hand the device to a “designated blower.” If a parent is late taking a test, she is sent a text and/or email prompting her to take the test. If the parent misses the test altogether, the other parent is notified by email. If the parent submits a test that is positive for alcohol, the other parent receives that information via email and can go to retrieve the children from the drinking parent (provided the custody order is drafted to allow for immediate relinquishment of the children by a parent who tests positive for alcohol in violation of the order.)
This technology has allowed parents to directly address the safety issues of a parent who, in the past, drank to excess during his or her possession of the child. Because Soberlink is available to detect alcohol use and protect children in the event of a parent violating an injunction against drinking, asking for supervised possession of a parent because of alcohol use is often deemed overreaching and excessive. Soberlink effectively addresses the concern of alcohol consumption during a period of possession, without disrupting the child’s usual schedule with that parent. A parent requesting a more restrictive possession schedule has to provide evidence of some other behavior that justifies supervision or reduced possession.
*A parent might be enjoined from drinking 12 hours prior to and during her period of possession of the children, but testing facilities are not open on the weekends. A parent could drink during his or her weekend period of possession and not have to test until Monday. The alcohol would no longer be present in the blood or urine of that parent if the bender took place on Friday or Saturday night. While really heavy alcohol use can be detected by ETG testing, it is not specific to a time period and cannot conclusively prove that a parent drank while she had possession of the child. Drug use was easier to prove because drugs are illegal and should never be in a parent’s system. There is no burden to show that a parent is using drugs specifically during a period of possession of the child, just that they are using drugs.
