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My Ex Got a DUI. Can I Take Custody?

When the other parent of your child is charged with driving under the influence (DUI), it’s important to consult with a Denver family law attorney as soon as possible to thoroughly go through the facts and circumstances surrounding the situation. Of course, the first, most important issue to be dealt with is making sure that your children are safe. Beyond immediate safety concerns, there may be other long term and short term legal steps you might take tied into the DUI. Given that family law judges are empowered with wide discretion to determine the best interests of a child, a DUI may be treated differently from court to court.

Initially, it should be noted that one parent getting a DUI, standing alone, may not be a basis for a change in child custody or parenting time, or entry of emergency orders. Though any parent getting a DUI may be cause for concern, the key issue is how, if at all, it impacts their ability to parent.

Emergency action would certainly be warranted if that parent got the DUI with the child, or children, in the car. Generally, that parent is also going to be charged with child abuse. By driving while intoxicated with children in the car, the offending parent has clearly put them in harms way in a physical danger sense. Absent some sort of full proof assurance that it won’t happen again or an agreement to stop parenting time, the filing of a motion to restrict parenting time pursuant to C.R.S. 14-10-129.4 is the best available remedy to ensure the children’s safety in an immediate sense. With the filing of the motion to restrict parenting time, all visitation ceases until there is a court hearing, which must occur 14 days from the date the motion is filed. At the hearing, the court will need to determine the severity of the problem and whether the kids are in “imminent danger” such that a restriction of time will need to continue.

If there have been multiple DUI’s, particularly when those DUI’s have caused a disruption to parenting time, there may be a basis for more long term modifications of parenting time. This might be justified due to missed time and the impact the parent’s behavior has on the children. Perhaps that parent has lost his or her license and no longer has the ability to drive the children during his or her allotted times. Moreover, the DUI may be a symptom of a deeper seeded alcohol abuse problem. There a some judges who may not view a single DUI, or even two, as a big deal.

In most cases, at a minimum, the court will likely enter orders prohibiting the use of alcohol and requiring testing for a period of time. Testing will generally entail either breathalyzer testing or ETG urinalysis. The latter can detect alcohol use roughly 80 hours in the past. Though visitation may not initially be changed due to the DUI, failing to comply with any testing requirements may lead to a cessation of parenting time.

Each case is different and the facts surrounding the DUI do matter. If you are in a situation in which DUI has become an issue, contact the custody attorneys as Plog & Stein to get a better understanding of your rights and options. Our attorneys understand that the safety of your children is of the utmost importance to you. We also understand the importance of making the right legal decisions in order to protect them.

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