Stepdad got DUI, kids were in the car

[United]

Hi Soc,

We are in Ca. and have joint legal and physical.  

We asked for physical last year at trial after ex (mom) disagreed with mediators recommendation that custody should go to dad.  Ex is an alcoholic as is her current husband.  We were not able to convince the  judge, but we did get a clause adopted in our court order which states parents must be clean and sober 12 hours prior to and during custody time and chldren will not be transported by anyone under the influence of drugs or alcohol while in their care.

Well, stepdad recently got a dui (two counts, one for dui one for excessive blood alcohol).  Kids were in the car.  Kids didn't tell us and neither did mom.  Infact, she doesn't know we know yet.

In addition, son, 15, is in treatment for alcohol and drug addiction himself.  Mom refuses to permit him to enter in-patient treatment.which has been recommended by his counselor.  We would like to obtain legal custody so we can get him help.  

We asked for physical custody in trial, but unfortunately judge believed mom when she said she doesn't drink anymore.  In reality, both mom and stepdad drink everyday.  Judge went with moms request for 50/50 over mediators recommendation for dad primary.


1.  How best can we use this awful situation (and serious violation of our court order) to better protect the kids?


2. Is the fact that they were in the car and endangered in this manner enough to go back and actually get legal custody? Or ask to change physical again?  

Any suggestions would be really appreciated.

Thanks so much.

[socrateaser]

>1.  How best can we use this awful situation (and serious
>violation of our court order) to better protect the kids?

If you are saying that this DUI occured after the custody trial, and thus it is new evidence of the other parent's unfitness to parent, then file an ex parte OSC for temporary sole custody on grounds that the children will suffer irreparable harm if they are permitted to remain with the current custodial parent. Even if it's the step parent who is the danger, the fact that the custodial parent is married to the stepparent, makes the situation dangerous for the children.

Get a copy of the police report and attach it to your OSC as evidence of the problem. The court will probably grant your request and then hold a hearing to determine if the OSC should be made permanent. At that hearing you can ask that the stepparent successfully complete an alcohol rehab program as a condition to returning to the original custody orders.

Then, you can try to assemble other proof to show that the custodial parent is also an alcoholic and if you are successful, then you can move for permanent sole custody on those grounds. But, as long as the stepparent is a danger, the temporary order will give you sole custody, and by the time that the stepparent dries out, a new status quo will exist with you as custodial parent, and the court will be extremely unlikely to return to a 50/50 arrangement, assuming that the children are thriving in their current environment with you.

>2. Is the fact that they were in the car and endangered in
>this manner enough to go back and actually get legal custody?
>Or ask to change physical again?  

See above.

[United]

1. Would CPS have been notified automatically if kids were in the car?

I like your thoughts on all this Soc.  Brilliant, as always!


Thanks a bunch!

[socrateaser]

>1. Would CPS have been notified automatically if kids were in
>the car?

If the stepparent was arrested, and there was no one sober in the car who could take charge of the kids (like the CP), then the children would "probably" have been placed in CPS' care until the CP could be contacted. However, in a rural jurisdiction, the local sheriff would probably have just kept the kids in the stationhouse until the CP could be contacted to come and retrieve them, so CPS wouldn't have been notified in this case.

And, if the CP was in the car, and was not arrested, then the children would have been left in the CP's care, and CPS would not have been notified.