Tuesday, April 1, 2014

Suggested Language Regarding Drugs and Alcohol

In child custody matters, parents frequently accuse the other of abusing drugs or alcohol. Once the accusations have settled in, the attorneys need to craft language that prohibits both parents from doing something stupid with drugs or alcohol while in possession of the children.

Here's language that I see way too often:
Neither parent shall use drugs or alcohol while in possession of the child.
or
Neither parent shall use illegal drugs or alcohol while in possession of the child.
or
Neither parent shall use illegal drugs while in possession of the child nor shall either parent consume alcohol during the 10 hours prior to or at any time during possession of the child. 
The provisions are worthless for these reasons:
  1. Definition of "Drugs." The first example, in my opinion, prohibits either parent from smoking, vaping, using "the patch", taking Tylenol, or drinking coffee while in possession of a child. Nicotine, Acetaminophen, and Caffeine are all defined as "drugs" by someone. Certainly no one really means to prevent a parent from drinking a cup of coffee! Now the first defense I hear when I criticize this type of language is that "everyone knows what we mean by 'drugs'." No, everyone does not know. That's one of the lawyer's jobs: Make certain that the language of an order is so clear that there can be no question whether a person is complying with the order. If you draft something this wide open, I assure you that one day, someone who is desperate to prove a point against another parent will be filing an enforcement motion over Tylenol consumption. How embarrassing to the drafter!!
  2. Definition of "Illegal Drugs." That might seem clear enough, but it is not.
    • First, in what jurisdiction is the drug illegal? For example, if a parent takes a child on a ski trip to Colorado and decides to indulge in Colorado's recreational marijuana permissiveness, did the parent use illegal drugs while in possession of the child? It's not illegal in Colorado. Or is it? Just because marijuana is generally legal to use in Colorado does not mean you can walk around with a brick of weed in your duffle bag and smoke it in public.
    • Second, just because the drug is "legal," whatever that means, does not mean that the parent is using it lawfully or is even in lawful possession of it. If a parent has just undergone dental surgery and the oral surgeon prescribed some Hydrocodone, you wouldn't say that parent is using illegal drugs as long as the parent has a valid prescription and is using the drug in compliance with the prescribing physician's instructions. But what if the parent has stockpiled Hydrocodone for a "rainy day" and, with all the noise from having the kids around, has decided that today is a rainy day and therefore it's time to escape into a Hydrocodone stupor. This is the behavior you want to prevent.
  3. Consumption of alcohol. For a parent who is a dangerous drunk, the third example above probably addresses the alcohol issue sufficiently. But there are plenty of situations where one parent accuses the other of over-indulgence either out of spite, fear, or a difference in moral values as to intoxicants. That doesn't mean the accused parent is dangerous to the children. But it probably does mean that a sensitivity needs to be addressed in order to get the case settled. An absolute prohibition against alcohol use will prevent certain religious groups from simply participating in important religious rites--that can't be the (legitimate) goal of the alcohol prohibition language.
So what are we looking for in good language?
  1. Clarity/Enforceability (they mean about the same thing in the litigation world)
  2. Effectiveness in preventing the root problem being addressed
  3. Flexibility allowing people to live their lives as long as they don't pose an unreasonable risk to the safety and welfare of the children.
So here's the language I use. I'm interested in your responses to this--mostly because I learn a lot by reading your comments and suggestions.

Recommended Language on Alcohol and Drug Use

Restriction on Use of Alcohol. Neither parent shall consume alcohol to the point of being "Intoxicated," as that term is defined in section 49.01(2) of the Texas Penal Code as amended from time to time, nor be in an Intoxicated state at any time during his or her respective periods of possession of the child.

Restriction on Drug Use. Neither parent shall "Administer" to themselves or anyone else any "Controlled Substance" or "Controlled Substance Analogue", except when that parent is in "Lawful Possession" of such Controlled Substance or Controlled Substance Analogue  and only then in strict compliance with the instructions provided by the prescribing physician. Under no circumstances shall a parent Administer a Controlled Substance or Controlled Substance Analogue to themselves in a manner that would result in that parent being Intoxicated or otherwise posing a serious and immediate threat to the safety and welfare of the child during a period of that parent's possession of the child.  [Omit this next sentence if recreational use of marihuana is OK as long as it's legal.] Notwithstanding any local or foreign state law to the contrary, neither parent shall Administer to themselves or another person or be in Possession of Marihuana at any time during his or her respective periods of possession of the child. For the purposes of this section, the terms "Administer," "Controlled Substance," "Controlled Substance Analogue," "Lawful Possession," "Marihuana" and "Possession" shall have the meanings defined in sections 481.002(1), 481.002(5), 481.002(6), 481.002(24), 481.002(26), and 481.002(38) of the Texas Health and Safety Code and the term "Intoxicated" shall have the meaning defined in section 49.01(2) of the Texas Penal Code, each Code as amended from time to time.
What do you think?

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