The Sobering Truth—How a DUI affects custody decisions in California and what you can do to help your case

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Driving under the influence of alcohol or drugs is a very serious matter. It endangers yourself and others. Alcohol-related accidents are the leading cause of death on U.S. roadways, accounting for nearly 30% of all traffic fatalities—well over 10,000 each year, plus 300,000+ injuries. Almost 70% of those accidents involve drivers with more than double the legal blood alcohol content (BAC) of .08%.

A DUI can result in misdemeanor or felony charges, depending on state laws and the circumstances of your arrest.

DUI and Custody in California

Child custody is one of the most consequential and emotional issues to work through in a marital dissolution. It affects your relationship with your child and the shape of your entire family unit.

In deciding custody arrangements, the court must, above all, prioritize the best interests of the child. The best interests principle begins with the assumption that, except in unusual circumstances, a child benefits from a meaningful, consistent, ongoing relationship with both parents; whenever possible, some form of shared custody is preferred. But the judge will also consider a wide range of factors about the child’s health, safety, and welfare—including whether either parent has a history of alcohol or drug abuse or if there is evidence of violence, abuse, or negligence.

If there’s reason to believe the child’s well-being could be in jeopardy when in the care of one of the parents, it can impact the outcome of the custody case. A DUI can affect the judge’s view of all the “best interests” principles and negatively affect your ability to properly care for your child.

However, a DUI does not mean you automatically relinquish your custody rights. Each situation is unique. The court will evaluate your DUI in the context of many factors to determine whether it indicates a more significant problem or pattern of behavior that could compromise your child’s well-being.

In some custody cases, a DUI will not be disastrous—and in others, it can have an enormous negative impact. If your ex is battling you for custody and trying to prove to the court that you have a chronic problem with alcohol or substance abuse, DUI charges hand them a significant piece of evidence to use against you. But the court has broad discretion and will weigh many details of your case, including:

 How long ago was your conviction?

  • If you had a single DUI in the distant past, sought treatment/counseling, and had no problems since your arrest may not play a pivotal role in custody decisions.
  • If your DUI was more recent or you have not taken the necessary steps (counseling, fulfilling probation terms, etc.), it can be a bigger problem.

Was your child in the car?

  • If a minor was in the car with you at the time of your DUI, it may raise serious questions about your ability to properly care for your child.

Was this the only time it happened?

  • While you may not lose custody over an isolated DUI in your past, a pattern of poor decisions will likely affect the judge’s view. A repeat offender may be considered at a higher risk for substance abuse/addiction problems, child endangerment, and future DUIs. A criminal record can impact your ability to seek custody, especially when the offenses directly relate to a child’s safety and health.

How far over the legal limit were you?

  • A BAC of over 0.15% carries enhanced legal charges and may severely impact your custody case.

Were there other aggravating circumstances?

  • Were you driving on a suspended license?
  • Did driving under the influence result in an accident or injury?
  • Were you involved in a hit-and-run? Did you leave the scene of an accident?

Have you taken meaningful steps to get healthy and sober?

  • Did you seek appropriate treatment or therapy after your DUI?
  • Has there been any substance-related problem since your arrest?

While a DUI is unlikely to cause you to lose legal custody (the right to make decisions about your child’s upbringing), it does affect considerations specific to physical custody (the person the child lives/spends the most time with). Remember that the judge is deciding who will provide a safe, stable, healthy home environment and daily routine—typically transporting children to school, activities, appointments, etc.

In custody decisions involving DUI, the judge may:

  • Award sole custody to the other parent.
  • Order supervised visitation.
  • Order you to undergo treatment and regular testing to maintain your custody/visitation rights.

What can you do to support your custody case if you’ve had a DUI?

  • Be proactive! Take steps to demonstrate to the court how seriously you take your DUI. Seek treatment. Show that you’re committed to ensuring substance issues do not interfere with your responsibility and reliability as a parent and your commitment to providing a safe and positive child-rearing environment.
  • If you have completed the terms of your probation, you may be able to have your record expunged.
  • If you lose, seeking a custody modification in the future is possible.
  • Speak with an experienced custody lawyer.

The skilled and caring attorneys at SFLG want our clients and their families to be safe, healthy, and in the best possible custody arrangement. If you’re facing a custody dispute that includes DUI issues, we can help you navigate these challenges and build the strongest case.

By Debra Schoenberg

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