LawTalk Blog

Spending time with the children where one parent is an alcoholic

childrens issues

"The kid's Dad is a good Dad, but he drinks a lot.  I am loath to allow him 50/50 custody as I cannot be sure that he won't drink and drive with the kids in the car.  What can I do to protect the children but also allow them to have a good relationship with their Dad".

It is in the best interests of children to have a close relationship with both of their parents and significant members of their family.  However, the safety of the children will override the importance of those relationships.

The Court must examine, in all parenting cases, whether or not equal shared parental responsibility is appropriate.  If the Court is of the opinion that equal shared parental responsibility is appropriate then the Court must also consider whether the children should spend "equal time" with each of their parents.  In circumstances where equal time is not appropriate, the Court is then obliged to consider "substantial and significant time" arrangements.  However, the best interests of the children are paramount.

A consideration of a child's best interests involves weighing up two factors:

  • The benefit of the children having a meaningful relationship with both parents; and
  • The need to protect the children from physical or psychological harm.

The need to protect children from harm is given priority over the benefit of having a meaningful relationship with both parents. The Court therefore is very concerned with protecting the safety of the children where one or both of the parents have alcohol or other substance abuse issues. 

Whilst it is rare to make Orders that the children do not see a parent at all, stringent conditions can be put in place by the Court to protect the children while they spend time with a parent who has substance abuse problems.

For example, if the Court considers that children may be at risk in the care of one parent, it can Order that they spend time or communicate with that parent under supervision by another person who has been agreed by the Court.  This can be another relative or someone at a "Contact Service".  A Contact Service is a place where children can be dropped off and picked up or spend supervised time with the parent.

Restraints can also be put on a parent's behaviour immediately prior to and during the time that they spend with the children.  For example an Order can be made that a parent not consume alcohol or other illicit substances 24 hours prior to or during the time that they spend with the children. To ensure that those restrictions are adhered to an Order can also be made for urine or hair follicle testing to test for the presence of illicit substances and compliance with that Order.

It would be extremely unlikely for a Court to Order 50/50 custody of the children in the circumstances outlined in our opening paragraph scenario.  The Court would need to be satisfied that the father in that hypothetical situation was able to abstain from alcohol prior to and during his time with the children and that the children were not at risk of any harm before it would consider making such an Order.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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