My soon to be ex-husband has a drinking problem. Is alcoholism a cause for custody in divorce/child custody proceeding?

Few issues surrounding divorce proceedings are more emotionally charged than the welfare and safety of your children. Courts prefer to let couples duke out the issues surrounding the dissolution of a marriage, however, if you and your ex can't agree on what's best for the kids, a judge will do the dirty work for you. If your husband disagrees with your assessment of his addiction and believes that he's perfectly capable of caring for your kids, he's sure to fight this battle tooth and nail. What are the likely outcomes? Like all things law, there's no black and white answer and it all depends on the state.

As background, approximately 14,000,000 Americans meet the diagnostic criteria for alcohol abuse. One in four children under the age of 18 are exposed to alcohol abuse or dependence in the family. Recognizing the severity of alcoholism and child custody matters, some states have enacted legislation specifying alcohol abuse as a factor in determining custody-other states give the courts more discretionary power to deal with case on an individual basis and rely on lose interpretations of statutes causing a lack on uniformity.

Courts do agree that it's imperative to consider the "best interest of a child" in a custody battle. However, the legislature failed to specify the exact weight that alcohol abuse plays in the decision, thus the onus is on the judge to make a determination.

In exercising discretion under this broad umbrella, courts generally evaluate the circumstances against two key factors. First: safety and welfare of the child. The court's primary concern is the child's health, safety and welfare. For example, in California, this codified policy is a counterpart to the legislature's finding that the "perpetration of child abuse or domestic violence in a household were a child resides is detrimental to the child." Under this factor, alcohol abuse becomes a heavy consideration and if you've got proof of your ex husband's preference for liquor, you have a strong case for sole custody. This factor is generally balanced against the second factor: Frequent and continuing contact with both parents. If your ex participated and shared responsibility in raising your kids, an appropriate custody or visitation award must take the joint parenting into account, assuring that children "have frequent and continuing contact with both parents after the parents have separated of dissolved their marriage." Of course, this element is evaluated against a child's best interest.

You should be aware that before considering allegations of your husband's alcohol abuse, a court might require "independent corroboration" such as written reports from law enforcement agencies, medical rehabilitation facilities or other organizations providing drug and alcohol abuse.

Bottom Line: Both you and the courts want to do what's in the best interest of your child. Be prepared to provide proof in order to truncate the length of a proceeding. If possible, you and your ex should attempt to discuss what both parties are trying to accomplish. Everyone stands to benefit from an amicable settlement. Most important, eliminating an all out brawl will make an already very difficult transition easier on your children.

Sources:

• Custody Information
• Child Custory Laws

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985.In addition, she earned her Juris Doctor from Harvard Law School in 1987.

Lis is also the author of The 51% Minority — How Women Still Are Not Equal and What You Can Do About It . ( Watch the Video ) and Winning Every Time: How to Use the Skills of a Lawyer in the Trials of Your Life

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