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Alcoholic ex-wife driving intoxicated with our children. How much proof do I need?

San Francisco, CA |

My ex lost legal custody of our children about a year and a half ago. She also had supervised visitation. A few months ago, she got joint legal and unsupervised visitation back. The last few weeks, she has taken a turn for the worse again and yesterday drove our kids to practice intoxicated. I could smell the alcohol on her and she was obviously buzzed - not wasted. When she was leaving (without our kids, but with another girl that was about 5 years old), I called the police. They didn't get there before she left and weren't able to find her.

It is in the court orders that she not drink within 12 hours of her having the children. My question is: how much proof do I need to take her back to court, ex-parte? Do I actually need the police to catch her, or is my testimony enough?

The next day after the incident noted above, my ex failed to pick up our kids from school. She did not notify anyone and I wound up getting a call from the school an hour after the kids weren't picked up. After leaving the kids with someone else, I went to my ex's house to see what was going on. Her car was gone but she answered the door. She looked absolutely wrecked! She said her car and phone were stolen, so she couldn't call anyone. She said she noticed it was gone 10 minutes before she was supposed to pick them up. She lives very close to the school and could have walked. I wound up catching her in a lie later when she said she didn't go to the school because she was busy being on the phone with the police...whoops. How do I find out if she was arrested for a dui? It seems like it is very hard information to obtain. Will the court look it up when I go ex-parte?

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Attorney answers 2


This is a tough question to answer because there is no bright-line rule on the issue. Each case, with each separate set of facts, will have to be decided by the Judge or Commissioner who hears the case. Now, with that being said, in this situation, I would say that you really don't have much of a choice but to go into court on an emergency, ex parte basis to, at the very least, request that her custody and visitation privileges be put on hold until the matter is investigated and resolved. Yes, your testimony, and that of any other witnesses, could certainly be enough for the Court to modify the orders again. Certainly the more evidence you have to present, the better your chances in obtaining the orders you seek, including police intervention. This is OBVIOUSLY a very serious issue for you, and if you believe she is using alcohol while in the presence of the children, you have to request these orders.. However, remember, she certainly has the right to present her side of the story, as your making some very serious allegations.

I believe you may want to check into some sort of alcohol testing products. If you "Google" the issue, you will see there are several products on the market (many even sold through Walmart!) that can instantly test for alcohol use. It may be beneficial to request that you ex be tested anytime there is a concern that she may be using alcohol while with the children. Your ex may even agree to the testing in order to maintain her visitation rights.

This response does NOT create an attorney-client relationship. This response is for educational purposes only. This response is not intended to be legal advice to the reader.

Michael John Harrington

Michael John Harrington


Also get an order for urine testing


It would come down to how creditable you are as a witness and the history of the case. If there are documented alcohol issues with your ex and/or she has admitted to alcohol issues, then the judge is more likely to believe you based upon your own testimony by itself. It is always better to get as much evidence as possible, but I still think you have enough to at least demonstrate there is an emergency to go ex parte. Do what you need to protect your kids.

The above response is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes and is not a legal consultation. You must talk with an attorney of your choice before making any decision about your actual legal rights.

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