DRUG AND ALCOHOL USE: WHAT YOU SHOULD KNOW BEFORE FILING A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP IN TEXAS

 

INTRODUCTION

Deciding between two disputing parents as to who should have custody of a child can be a challenging undertaking for any judge. Although it may seem intrusive to people involved in the court system, it is important for the judge to have as much information about the parenting qualities of each person to make the best decision for the children. One issue that parents should be aware of that may come into play during their case is the issue of consumption of alcohol and other drugs.   In a large number of family law cases, one of the ways to differentiate between the capabilities of the parents is to present evidence that a parent is using illegal drugs or is excessive with their consumption of alcohol. 

It is very common in Texas for the Court, either on its own motion or the motion of either or both parties, to order drug and/or alcohol testing of one or both parents. Generally, an alcohol and/or drug test is requested at the time of the temporary orders hearing (typically the first hearing held) in a suit-affecting the parent-child relationship, which includes a divorce action. A motion for drug and/or alcohol testing can be requested instanter, which means that you may not have any advance notice that the Court or the other parent is requesting that you submit to a test prior to the temporary orders hearing. Therefore, whether or not you are the parent that may be using alcohol excessively/using illegal drugs there are things that you should know about this issue prior to filing a Petition or Counter-Petition in a suit affecting the parent-child relationship. 

The first point to be aware of regarding this issue is that if you are using illegal substances, you need to stop immediately and seek professional assistance if you believe that you have a substance abuse problem. You should not file for divorce until such time that you believe that you could pass a random drug/alcohol test because you could be ordered to submit to a random drug and/or alcohol test by close of business on the day of the initial temporary orders hearing.

There are many myths to drug/alcohol testing to be aware of no matter what side of this issue that you may fall. Over the next several weeks, I will be providing you with information regarding the common types of drug/alcohol testing that you may be ordered to submit to, including common methods to try to “beat” a test. 

Over the next several weeks I will be providing helpful information regarding the impact that illegal drug use and/or substance abuse issues may have on your case. Next week I will discuss part I of a 4 part series, which will include:

PART I

URINALYSIS DRUG TESTING

  • ·        ALCOHOL
  • ·        DRUGS

PART II

HAIR FOLLICLE DRUG TESTING

  • DRUGS 

o       HEAD HAIR

o       BODY HAIR

PART III

  • ·        FINGERNAIL SCRAPES/OTHER NAIL TESTING

PART IV

  • ·        FREQUENTLY ASKED QUESTIONS

CONCLUSION

Please feel free to contact us if you have questions for a Texas divorce or family law attorney.

 

Dallas Lawyer Upholds Rights of Natural Parent

Shout out to winning lawyer Kirk Pittard, a Dallas lawyer who handles civil appeals!  He tells me that this appeal was a companion to a civil lawsuit over the same matter.  Looks like a good result to me. 

-- MMO

In a recent decision by the Dallas Court of Appeals, the rights of a biological father were vindicated.  In the case of In the Matter of B.B.M, a child's biological father appealed the trial court's determination appointing the child's non-parents as joint managing conservators.  In the Matter of B.B.M., -- S.W.3d --, No. 05-08-00501-CV, 2009 WL 1801035 (Tex. App. - Dallas, June 24, 2009). 

The facts of B.B.M. are very interesting.  Biological father and mother live together as boyfriend and girlfriend.  Mother and biological father break up and mother moves out of the couple's home.  After a few months, mother moves in with her new boyfriend.  Shortly after mother moves in with her new boyfriend, she discovers she is pregnant.  New boyfriend and mother believe that new boyfriend is the father (turns out he wasn't) and decide to place the child up for adoption. 

Biological father later learns of mother's pregnancy and becomes concerned the child might be his.  Mother continues to work with an adoption agency to place the child with adoptive parents in Idaho.  Biological father learns that mother is about to give the child up for adoption, contacts the adoption agency, informs it of his concerns that he is the child's father and that he objects to the pending adoption.  Adoption agency proceeded with the adoption, the and Idaho parents took the baby home from the hospital after executing an acknowledgment they understood there was a risk the biological father (still disputed at this point) would not relinquish his rights to the child.

Approximately three weeks after the child's birth, biological father filed notice of his intent to claim paternity of the child.  In response, the adoption agency filed suit requesting the termination of biological father and mother's parental rights.  Biological father counter sued to establish paternity, to which the court ordered a paternity test which confirmed mother's current boyfriend was NOT the father. 

After a trial by jury, the court awarded managing conservatorship of the child to the adoptive parents.  Biological father then appealed this determination. 

The court noted the strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator is deeply embedded in Texas law.  (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)).  To overcome this presumption, a nonparent must prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child's physical health or emotional development.  See Tex. Fam. Code Sect. 153.131(a).  The evidence required to do so must support the logical inference that some specific, identifiable behavior or conduct of the parent will probably harm the child.  Further, mere speculation that a nonparent would be a "better" custodian of the child is wholly inadequate to meet this burden.  

In reviewing the evidence presented at trial, the court noted the adoptive parents primarily related to the potential impairment of the child's emotional development resulting from his removal from the adoptive parent's home.  The court also noted that the proper focus of inquiry is solely whether the placement of the child with the natural parent would significantly impair the child's physical or emotional health. 

In reversing the trial court, the court held there was no evidence presented that the child suffered from any ill effects from time spent with his biological father and that when a nonparent and a parent are both seeking managing conservatorship, close calls go to the parent.

The rights of a parent have been characterized as essential and far more precious than any property right.  As a Dallas Divorce Lawyer, I am ready, willing and able to help protect these precious rights.