Child Custody First DUI Offense
You can’t afford to get a DUI when fighting for child custody

Last Updated: February 17, 2022

As most people are aware, even a first driving under the influence (DUI) offense can result in severe consequences under the strict laws in every state. However, one of the less commonly known penalties of what a drinking or drugged driving conviction could bring into your life, how it will affect a child custody case. If a parent is caught driving under the influence of alcohol or drugs – especially with a child in the vehicle – that parent will be considered by the court to be at high risk for a child’s safety and well being.

The family law court could get involved, even when a child was not in the vehicle at the time of the DUI arrest.

Even if this is a 1st-time arrest, what is going to happen for a first offense DUI or DWI situation next, is that a social worker is very likely to become involved in your life and examine both the child custody and recent criminal DUI offense case. It is not uncommon for the court to revoke custody of the parent who gets convicted of a new driving under the influence charge.

A DUI is Bad Even Without a Child in the Car

Even in scenarios during a DUI or DWI arrest when there was no child in the vehicle at the time, a divorce or custody judge might still view this behavior as a danger to the children. They could review the events and case further, to later conclude that even though the parent who was arrested for drunk driving did not have any children in the car on that particular occasion, they may have reason to believe the charged parent did so with kids inside the vehicle in the past. Or, the divorce or custody judge might be concerned that the parent has a drinking problem and should not be left alone with the child.

Possible Investigations

When a parent gets a DUI while in the middle of a child custody battle or divorce case, the other parent and her/his attorney will use it to go on the offensive to destroy the parent who was arrested. In these cases, the family court judge will many times need to appoint a 3rd party to investigate the family, especially the parent charged with a DUI, so that the the judge can obtain additional information. Most of the time this is done by the court appointing a Child Representative or Guardian ad Litem to the case. A child representative is an attorney (most of the time a private practice divorce lawyer) that represents the best interests of the minor children involved in the case. The child representative would eventually report back to the judge and give a recommendation which the judge normally follows. A child representative is not free – most of the time they need to be paid by each parent, and can be at least $2,000 up front, split 50/50 between the parents.

A court appointed child representative will do the following:

  1. Conducting an interview with you and your ex-spouse.
  2. Having another interview with the children or other family members in the house.
  3. There will be a thorough investigation of the arrested parent’s daily life routine, the children’s everyday schedule, and other regular habits of the household lifestyles.
  4. They may search the residence and/or car for evidence of drug, alcohol, or other substance abuse. Some examples of this could include empty liquor cans or bottles, and even a credit card statement containing proof of buying recent alcohol beverages.
  5. Possible (probable) random drug and alcohol testing with as little as 2-hours notice to see if the parent charged with a DUI is remaining sober and staying away from any amount of alcohol or drug use.

The court-appointed child representative for a child custody case might also search through cabinets for wine or beer bottles. They can even do a surprise visit at your child’s school for a short session to ask them some additional questions, show up at your residence unannounced for a visit, and a variety of other ways to check for indications that puts the safety or well-being of any children at cause for concern. In many custody cases, a parent getting a DUI charge is what can start this investigation process, even when a child is not present kids in the car at the time of being arrested.

Child Custody and Family Law Issues After a DUI Charge

When a parent in a child custody case is later arrested for a DUI or DWI offense, this charge is very likely be used against that parent if they ever need to dispute a custody matter or want to request more access with their children in family court. Just because a custody case or divorce case is done does not mean it won’t be used against you. This is where the other parent files a motion to restrict your parenting time – sometimes done to cut you off from requesting more time in the future and to get your mistake on the record so it won’t be forgotten in the future.

A parent getting charged with driving under the influence could be viewed by the court as valid proof that justifies an earlier substance abuse allegation as truthful, which the court may see as being a serious risk factor to the children. When the court is determining the best interest of who the children are best primarily living with, a parent getting a DUI arrest can severely damage a custody case.

There are additional consequences that can happen as well upon a DUI offense conviction. Mothers Against Drunk Drivers (MADD) believes that a parent caught drinking and driving with a child in the vehicle is a form of child abuse. As a result, there are currently 46 states in the country which now have extra mandatory penalties for parents who get convicted or plead guilty to drunk or drugged driving with children under the age of 15 in the car.

So, You Got a DUI – What Now?

Now is the time get your life in order – and quickly. Get a child custody lawyer. Stop drinking. Stop all drug use (even if it’s legal). Hit the gym, eat healthy, lose weight – your personal appearance will mean something now because it will show that you are either lazy and drink and do drugs, or you are a healthy individual that just made a mistake. The family law courts in each state view drug and alcohol abuse as a matter which is very often an extremely difficult issue to get under control, and as a problematic pattern which could relapse in the future at any point. This means that you need to fight against this with all you’ve got and look like it too.

Attending counseling sessions is a good way to get mentally healthy as well – and it will show the court that you are active in maintaining your mental health and are strengthening your resolve to avoid any future mistakes. Taking ownership of a mistake and making sure that it is clear it will not happen again means that you must make the court see you as a mentally fit person who works on their mental health on a regular basis. Get things moving in a positive direction now and don’t ever look back – your family and your rights depend on it.

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18 thoughts on “How Will a First DUI or DWI Offense Affect a Child Custody Case?”

  1. What about my girlfriend? She has never had a dui or any kind of charge of that nature. She’s a teacher and coach and a pillar of the community. I did, however, receive a dui in may 2019. They both had 50/50 shared custody. The judge ruled that her daughter could not be in my presence and penalized her because the ex said the daughter had been around me. She hadn’t to that point and still has not. The Ex also said that she’d “been doing drugs.” Her and myself submitted to him a random drug screen. We both passed. She submitted two more screens and passed and we also have a hair follicle drug test that’s also clean. She now only has every other weekend and I of course cannot be around. It’s not a problem but it seems a little harsh for someone who has never been in trouble I’ve coached and taught my entire life with no other issues. Not to mention she’s been nothing but exemplary. I understand it’s kinda who you have as a judge but isn’t this a little crazy that the court would side with a jealous ex husband over the fact she’s never been in trouble and has even proved she’s clean?

    1. It absolutely seems harsh, but it all depends on the circumstances of each individual case. Judges bring with them their own personal bias, unfortunately (we’re all human), so that can cloud their minds, even.
      As far as your dui is concerned, was there some type of other issue with it where they would specifically say you can’t be around the child? Was it just alcohol, or something else? Was it a crash that happened, or just pulled over? And was a child in the car with you?
      Those factors would be treated far more severely than just 1-glass of wine too many and getting pulled over.
      This sounds like an experienced child custody lawyer needs to be involved to get some details here and find out why things are so harsh.

      1. No child was with me. There was no accident. The officers hadn’t even seen me drive. And no there was nothing that had to do with her child or any child. I’ve coached and taught in my community 20 years. We definitely need someone but I hesitate to use anyone around this place. I could explain but won’t. Any suggestions?

        1. This definitely sounds like the judge has an issue with her for some reason and is simply using some of these things as the reason to impose such harsh penalties against her.
          This definitely can’t be done without a lawyer, because if that is part of the reason, she needs to stay away from court unless the judge requires her presence. A lot of lawyer will tell people that a client being in court many times can damage the case and will instead not even have clients present unless ordered to do so. Reach out to us and lets see if one of people can help. this is a terrible situation.

  2. My brother in law is trying to get joint custody of his son from his ex his son his now three months old and she has never allowed him to take his son he is only allowed to visit him at her house but he pays her $600 a month in child support (which is not through the courts just on his own doing) she still hasn’t allowed him to take the baby and says she won’t so now he is trying to get a custody agreement on paper. The only issue here is he just recently got a DUI which is his 2nd DUI he still has his job and his license and has signed up for his classes and his first DUI was right after high school and he’s almost 30 now I was wondering if this could affect his case? we live in West Virginia. Her excuse for not allowing him to take his son has always been that he’s too young but she has taken the baby out of state three times now on vacation.

  3. Iam writing to get information for my girlfriend, approximately 8 or 9 months ago (just before Covid hit) she was arrested for DWI in NY state. She was the custodial parent of her 6yr old twins who were placed with their father. Her DWI was dropped down to a violation , she’s a special education teacher in good standing. This was her first DWI and has been drug tested twice a week, once scheduled and the other Random.She has come back clean every since her arrest and her children literally have to be dragged kicking and screaming from her house during the one day of visitation that she is given. She is a great mother who took very good care of her children, they had a structured schedule, only ate healthy meals and were well kept up. Now by keeping her kids from her is doing irreparable psychological damage to her kids. How can she regain custody of her children ASAP?

    1. Can she regain primary custody? It’s definitely possible. Can it be done ASAP? Extremely unlikely. There are a few things here that need to be answered and speaking with one of our excellent child custody lawyers is the best way to move forward.
      That being said, it is likely that a child representative (attorney for the kids) needs to be appointed to step in, investigate, and provide an opinion to the court. A great first impression needs to be made here – no other person (besides the judge) is more important than anything else. This person will tell the judge what he or she recommends – and the judge almost always follows the child representatives lead.
      The main issue here is related to the DWI. Whether it was plead down, etc., doesn’t make much of a difference. Every judge knows that someone gets a driving under the influence charge and the states attorney will make a deal and kick it down to a lesser charge (sometimes even non-alcohol related). But, rarely does someone getting a DWI mean residential custody automatically changes hands with a few exceptions, such as: 1. the other parent now has no reasonable way to facilitate certain necessary transportation for the kids (like taking them to school, etc.); 2. the DWI resulted in a collision and/or someone was injured; or 3. The children were actually in the car when teh arrest took place (this is where a judge would call it a ‘serious endangerment’ and yank the kids away immediately).
      Get a hold of one of our local child custody lawyers immediately and get started on this – she shouldn’t wait, it will only establish a more long term pattern with the father and make it harder for anyone to want to change. Remember, the primary thing here is what is in the best interests of the children – and switching homes back and forth is not a good thing unless there is a significant change in circumstances that warrants the change being made.

  4. I’m pregnant and my now ex boyfriend has gotten 3 DUI’s since he was 19. He is now 23. First one was convicted, second one he was able to get dismissed, and third he is still fighting in court. He has also driven drunk repeatedly during our relationship. He says he went to rehab for 3 days and checked himself out because it was “stupid.” He is about to become a Sargent in the army national guard. He is saying if I don’t go through with an abortion he wants custody and I feel he isn’t safe to be around a child. Would I have a good chance of sole custody in court? I’m in NJ if that helps.

  5. My ex father of my daughter got a dui with her in the car less than a year ago. They put a restraining order that protects my daughter from being around him, unless a judge says differently the restraining order is still active until 2022. However, he is now fighting me for primary custody and accused me of child abuse. A social worker already came to my house and spoke to me and everything seems good since the acusación are not true. Does he still have a chance in winning sole custody? Besides that he did also have a domestic violence case against me but I’m not sure the status of the case will that show in court to?

  6. I am currently 35 weeks pregnant, jobless, but living with family. My ex is the father and got a dui a couple months ago. He claims that because I am jobless that I am an unfit mother and will take me to court but I feel as though due to his dui and regular drinking expenditures after the ankle bracelet was removed, that he is unfit. Could he take the child from me seeing as he does have a good paying job, and could provide better financially on his own even with a dui?

    1. This man sounds abusive. Any individual that would attempt to scare a pregnant woman by saying he is going to take away a baby because mom doesn’t have a good job at the moment is abusive. If that is the sole reason for his attack, that is abuse. Now, obviously, if there are a multitude of other reasons for him making this threat, that is a different story altogether. But from what you have said, it sounds like an abusive relationship and I would certainly think that you have text messages, voicemails, and possibly other things to show a history or pattern of abuse by this man.
      Yes, a DUI is not a good look for him i a custody fight. It shows that he puts peoples lives in danger and might not be able to be trusted with a child.
      Also, a Court will not punish someone for not having a good job regarding custody with rare exception. Obviously if he was making $250,000/year, was a good man and you had numerous problems, were fired from multiple jobs, and did not have a stable home environment (ie. staying at different friends houses and bouncing around), that would be a negative for you. but being in your position, staying with family in a stable environment means that you are doing the right thing and his money should normally not have much of an impact at all.
      Your best bet is to put as much evidence together of his abuse (mental) while you are in these critical stages of pregnancy to fight off his potential future attacks. And you should do all you can to better your own situation (as much as possible, given your pregnancy).
      Finally, it is essential that you do not give him anything he could use against you – such as mean texts, emails, or voicemails. Do not let him make you act in a way that a judge could look at something and say that you were in the wrong.
      A side note here – the vast majority of courts will NOT remove a child, for even long parenting time (like overnight with dad) if the baby is breastfed as well. So it would be a smart plan for you to read up on that topic as much as possible – its better for the baby, of course, too.
      Although custody cases don’t begin until the baby is born, it is probably a good idea to get an experienced child custody attorney lined up – so give us a call.

  7. My daughter, custodial parent, got arrested for OWI, with endangerment while having ger 10 yr old with her. The child (and sometimes get) has always lived with us. The father us a felon for OWI. , still drinks. What are his chances of getting custody? The child does not want to live (or even visit) him, but he does his visits on a regular basis. Pkease advise

  8. Christopher sprinkle

    My wife is very abusive to me she’s an alcoholic and she drinks and drive with all three of my kids how old is Kid is ten my middle. Kid is 3 and my youngest kid is 6 months old. She’s very abusive when she drinks and hits on me and very mean very very mean provocative language I’ve even gone the law to try to have this drinking and driving stop and no there is nothing a man can do except sit back and wait until one of his kids are dead that’s all a man can do over these laws I’ve done called so many times it’s unreal. And she’s not a light Drinker she’s a heavy whiskey Drinker and drink straight whiskey she’ll drink a fifth and just a couple hours. Takes all the bill money spends on alcohol I guess this is what God intends for me to live in there is nothing I can do to get her. She’s very very abusive to me

    1. If this is happening in your home you need to document it. Get a lawyer and find out what the laws are for home monitoring (like nanny cam in the living room or kitchen) and file for divorce and custody. If documented proof is provided that she is an alcoholic or binge drinker and is abusive in front of the kids, your lawyer will present this to the judge, possibly even a child representative, and the judge will not allow your kids to be put in harms way. But you can’t sit back, you have to act and do so intelligently and make the right moves. this means you need an attorney.

  9. Elisabeth Southgate

    Thank you for helping me learn more about DUIs and child custody. Unfortunately my nephew recently got a DUI and is going through a divorce. He will be interested to know that even though his little wasn’t in the car that it could still get a social worker involved.

  10. My ex was .28with my son in the car,drove through a telephone pole and a billboard(with my son in car AND not in car seat properly) she got a simple dui and got off on everything with a PTI(IN NJ) the judge wanted to go back to shared custody immediately after her rehab with no supervision! To top it all off she drove again with my son in the vehicle while drinking and not in a car with state mandated shift interloc,again simple ticket and even know she is on a PTI for the same thing….. parole officers and courts did not care. I think the laws are talked up to be more then you think and are easy to beat with a good lawyer.

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