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I'm posting as a guest for anonymity.

My ex-wife and I have a shared parenting plan (50/50 time) of our 3 year old son. We live in the US (the state of Ohio) and have been divorced (technically a dissolution) for around 2 years. As our child is not yet school age we opted to put off assigning a "custodial parent" (which, I know, is rapidly approaching).

Since before we were divorced I have suspected my ex has a drinking problem but perhaps naively (or more likely for lack of visibility) I had thought she compartmentalized her drinking to her off-parenting time. Recently, however, there was an event that gave me great cause for concern and I want to be sure I understand the law so as not to mistep.

Last weekend, I was asked to watch my son for a few hours on a day that was scheduled hers (he had been cooped up in the house sick and was apparently driving her nuts). I took him out to run errands with me for a few hours but when it came time to drop him back off I received an alarming text message.

Essentially, she let me know that she had been drinking so it wasn't a good idea for her to meet us at the playground where we were going to be, so instead could I drop him off directly at her house? Obviously concerned, I asked her how much she had drank, to please stop and indicated I could keep him for an additional couple of hours while she took efforts to sober up. She was (understandably?) outraged, claimed to have drank only 3 beers and demanded I drop him off immediately. I held my ground and (after a lot of arguing) we eventually rescheduled the drop-off time to later in the day.

One of the things she let slip (verbally) while we were arguing was that she apparently regularly drinks while she has him but never drives "even after one beer" and "never gets drunk" when he is around.

Since this episode, I have been reading up on denied visitation and the contempt charges that can spur from that and so I want to be very careful in how I act. At the end of the day I want to protect my son but I'm also scared that I could jeopardize my ability to gain primary or full custody of him. I understand I need to document everything I see to begin building a case (which I have started) but I also want to be sure that if I have to involve the police that I do so in a way that doesn't harm my case.

My Questions:

  • Is there a legal standard as to how sober a care-giver must be to safely watch a child (or in other words) how drunk does my ex have to be for me to deny a drop-off? Is it entirely based upon outward signs or blood-alcohol level?
  • Am I correct in assuming that in order to protect myself from being accused of denying visitation, that (in the future) I need to involve the police if I suspect her of being intoxicated?
  • If I involve the police, do I need to be sure that she is extremely intoxicated in order to avoid a "false alarm"? (Obviously this scares me as I'd prefer she didn't drink at all)
  • What options do I have, if any, if she drinks around him in her own home? Is she within her legal right as long as she doesn't get in a car, doesn't pass out or does something blatantly abusive?
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    This is a very hard question that could go either way after the fact, yet requires you to take action immediately. Often there are not clear legal standards on this issue. But the consequences of making the wrong decision can be very high. – ohwilleke Nov 6 '17 at 15:31
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In 50/50 custody you have the right to stand your ground to ensure the safety and well being of your children. You do not need to involve police unless it is an emergency. "911 Operator, what is the emergency". Only call them when you feel your children are in grave danger. For example, you know for sure that the other parent is drunk and driving, or the other parent is drunk and on the ground unable to move and the child is in danger, etc.

If you involve the police over your partner excessive drinking than, and they find that she was not excessively drinking, you will face false accusation charges and her lawyer will try to make you look like the bad guy trying to take away her children.

how drunk does my ex have to be for me to deny a drop-off? Is it entirely based upon outward signs or blood-alcohol level?

You should not administer or search for drugs or alcohol (test) to avoid the accusation of an illegal search.

You can, however, based on your judgment of common sense assess the situation and see how drunks/he is and make your decision based on that circumstances. Make a 1-page log to document the date, time, situation description (3-5 sentences of what you see and why you make that decision.) It would be wise to have a witness around, so write down the person name as well for reference, (NOT MANY PEOPLE LIKE TO BE WITNESSES, But you can write down the people names that you know were around that incident.) Don't tell your partner that you are making the log. Suprise them in the court when you have a full page of incidents due to drinking.

Am I correct in assuming that in order to protect myself from being accused of denying visitation, that (in the future) I need to involve the police if I suspect her of being intoxicated?

*Always protect yourself! Be Your Own Advocate. * Don't involve the police unless its am emergency, read the first comment above.

If I involve the police, do I need to be sure that she is extremely intoxicated in order to avoid a "false alarm"? (Obviously, this scares me as I'd prefer she didn't drink at all)

This drinking incident is alarming itself. However, you should consult with your family law attorney. I would say that document five issues if it exceeds 5 in one month than filing a motion with the court to adjust the drinking problem, and that you request the child to be with you 60/40 custody. You must be able to demonstrate that you have the time, commitment and resources to take over the 60/40 custody.

What options do I have, if any, if she drinks around him in her own home? Is she within her legal right as long as she doesn't get in a car, doesn't pass out or does something blatantly abusive?

File a motion to adjust the custody, speak with your family law attorney.

  • A private person is not subject to the 4th Amendment requirements for searches and seizures. – ohwilleke Nov 10 '17 at 9:02
  • Changing from 50:50 to 60:40 is a difference of less than 17 hours per week. – RonJohn May 1 '18 at 5:47

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