Can a CP deny visit if the NCP is drunk?

[qurice]

What is the name of your state? TX

This question is in regards to my family friend who is divorcing. Today her husband came to pick up their son for his vist. Mom said he smelt like alcohol and she asked him if he had been drinking and he got defensive. The homeowner and "man of the house" (She is staying with my wife's aunt and uncle) was outside cleaning his car and went over to them when he heard them so things would not escalate. He told the homeowner to "take 2 steps back" and accused him of interferring with his parental rights.

Their son was already in Dad's car ready to go. The homeowner suggested that the police make the decision on whether or not he was OK to drive. Mom asked dad if he would be willing to take a sobriety test and he replied with "will you take a Fat-alyzer?" Dad then asks the son if he would rather stay with mom. Son says yes, and tells him to get out of the car and that he is not going to stick around to "incriminate himself" (those were his words) and Dad leaves.

Was Mom within her right to question his sobriety?

Was the homeowner in the wrong by stepping in?

A police report was filed after Dad left. Is this going to put mom in a bad light as far as their custody battle is concerned?

 

[Halls]

Mom shouldn't have asked the child if he wanted to stay with her or not. She should have just grabbed her child and didn't get the child involved at all.

If dad was intoxicated than mom had every right to deny dad from taking the child.

What the mom should have done is told dad to go sober up and come back and get his son when he is sober.

Anyhow, what is done is done. I don't think this one time is that big of a deal this one time. I wouldn't let my child go with any drunk no matter if it is dad or not.

 

[bononos again]

In the heat of the moment, bad decisions are made, like asking the child.
But, otherwise, Mom began to do what was right.
Is this an on going problem?
Or a first time?
I believe I would have taken the plate and made a report to the police and explained the situation.
Mom still technically denied a visit with no actual proof he was drinking.
She kept her child safe so that is what is most important, but you never know if it can come back to harm her.
Probably not, if this was the first incident of a denied visit.
Maybe, from now on, Mom can meet Dad at the area police station for exchanges. If Dad lives a bit away, meet at HIS local station, he'll have less of a drive, so he should have no reason to say no unless he's up to something.\

I read this post again and realized I should ask, is there a temporary visitation/custody order?
Also, to add, when the final order time comes, request that neither parent should consume alcohol 24 hrs. prior to visits, nor during.

 

[MomofBoys]

The Mom didn't ask the question to the child -- the drunken Pop did. If I was the kid, I probably would have gotten out of the car lickety-split.

Considering the Dad told the kid to get out of the car, then drove away, I don't see how the Mom did anything wrong here. She actually did not interfere... Dad CHOSE to not exercise his visitation by leaving without the child.

I don't see how this will pose any problem for the Mom. And I believe the homeowner was well within his rights to make sure an altercation did not occur on his property.

 

[bononos again]

The Mom didn't ask the question to the child -- the drunken Pop did. If I was the kid, I probably would have gotten out of the car lickety-split.

Considering the Dad told the kid to get out of the car, then drove away, I don't see how the Mom did anything wrong here. She actually did not interfere... Dad CHOSE to not exercise his visitation by leaving without the child.

I don't see how this will pose any problem for the Mom. And I believe the homeowner was well within his rights to make sure an altercation did not occur on his property.

You are so right. Smart kid.
Let's hope Dad wised up too and won't let this happen again.

 

[qurice]

Ok thanks.

There is a temp order in place, next court date is in April.

This incident happened yesterday. Mom spoke to her lawyer and at her lawyers advice, she asked him to meet her and the son at a neutral place. He said he was not going to violate the order by going somewhere other than what was specified and went to the home anyway. This time Dad had a squad car escorting him. Dad was surprised to find that the officer he brought escorting him was the same officer who came to make the report last night.

The homeowners informed Dad and the officer that at the advice of her lawyer, Mom informed him of a meeting place nearby and was waiting there for him. The officer wasn't pleased, but Dad did not want to leave until he "talked to his lawyer". The officer suggested he probably wouldn't be able to get a hold of ANY lawyer at 6:30pm on a Friday night, so he went to the meet point.

Dad lives in another town outside of the metro area and in the split of marital assets, she was given the car that hasn't run in several months. So she won't be able to meet near his home.

Thanks for the answers and ideas on how to handle. I'll pass on this info. You all have been a great help.

 

[Ohiogal]

Actually dad's attorney could crucify mom for this. Mom is not a professional and neither is the homeowner. Neither has a legal ability to state if someone is drunk or should not be driving. And threatening to call the police so they could perform a test on dad IS interfering with dad's parental rights. The homeowner NEVER should have gotten involved. Mom's lawyer has no right to tell mom to go against the court order. Mom could be found in contempt for doing this. Dad was correct in going to the house.
Sorry but mom could be in big time trouble for her actions.

 

[LdiJ]

Actually dad's attorney could crucify mom for this. Mom is not a professional and neither is the homeowner. Neither has a legal ability to state if someone is drunk or should not be driving. And threatening to call the police so they could perform a test on dad IS interfering with dad's parental rights. The homeowner NEVER should have gotten involved. Mom's lawyer has no right to tell mom to go against the court order. Mom could be found in contempt for doing this. Dad was correct in going to the house.
Sorry but mom could be in big time trouble for her actions.

So, you are stating that mom should have allowed the child to drive in a car with someone she believed had been drinking?

I think that the fact that dad left without the child is a pretty clear sign that he HAD been drinking.

That's a harsh position for a parent to be in, on the one hand a possible contempt for denial of visitation, or the other hand a possible neglect charge (or worse) for allowing her child to get into a car with a drunk driver. I think she erred on the only side she could have erred on.

 

[frylover]

OG, I understand that you have answered the exact question that was asked from a strictly legal standpoint...which is what this site is for. But I'm curious....what if Dad WAS drunk and Mom let the kid go because "it's in the court order" and Dad kills or maims the kid. COULD she face any legal charges for allowing her child to get in a vehicle with somene she suspected to be under the influence? Or would the attitude be "she didn't have a choice?" As screwy as our system is, it seems like this was no win situation legally..."sorry but the court order said you HAD to let him go, but you shouldn't have let him go if you thought Dad was drunk."

 

[bononos again]

Actually dad's attorney could crucify mom for this. Mom is not a professional and neither is the homeowner. Neither has a legal ability to state if someone is drunk or should not be driving. And threatening to call the police so they could perform a test on dad IS interfering with dad's parental rights. The homeowner NEVER should have gotten involved. Mom's lawyer has no right to tell mom to go against the court order. Mom could be found in contempt for doing this. Dad was correct in going to the house.
Sorry but mom could be in big time trouble for her actions.

Kind of strange that Dad waited till the next day to resume the visit with the police in tow, why didn't he immediately do that last night?
I ask again, is there a history here, or did Dad maybe make a one time bad decision?
A good wakke up call as to what needs to be requested in the final custody order.

 

[GrowUp!]

The Mom didn't ask the question to the child -- the drunken Pop did.

Ummm...miss "I Only-Have-2-Posts-to-my-name..." ....

Was a sobriety test done by a police officer to determine whether Pop was, in fact, drunk? I didn't see that stated. Just because someone smells of alcohol does NOT mean they are legally drunk. Every person is different and many factors go into whether ONE person is drunk.

Not that I am condoning dad showing up smelling of alcohol, but there is no legal proof that dad was legally drunk, so careful of the accusation.

If I was the kid, I probably would have gotten out of the car lickety-split.

Considering the Dad told the kid to get out of the car, then drove away, I don't see how the Mom did anything wrong here. She actually did not interfere... Dad CHOSE to not exercise his visitation by leaving without the child.

I don't see how this will pose any problem for the Mom. And I believe the homeowner was well within his rights to make sure an altercation did not occur on his property.

And just because you ask a question does not mean you can post LEGAL advice. This response proves that. Move along now.

 

[GrowUp!]

So, you are stating that mom should have allowed the child to drive in a car with someone she believed had been drinking?

So? Is there proof of how much has been consumed? One beer? 6 beers? a keg? One beer is considered "drinking".

I think that the fact that dad left without the child is a pretty clear sign that he HAD been drinking.

And I think you're ASSuming. And incorrectly, too.

LdiJ, quite frankly, you shouldn't be posting your thoughts on this subject as you don't know what you're talking about. You making blanket assumptions here.

There was a better way to handle ALL of this. But some of you were too busy playing the Fantasy Sobriety game,...how come the OTHER parent did NOT offer to drive the child -- in her car -- to Dad's for his parenting time? OP, care to answer that?!

 

[Ozark_Sophist]

Not that I am condoning dad showing up smelling of alcohol, but there is no legal proof that dad was legally drunk, so careful of the accusation.


And just because you ask a question does not mean you can post LEGAL advice. This response proves that. Move along now.

The same applies to you GrowUp! Drunkun in this case is used as an adjective to describe someone under the influence of alcohol and nothing indicates an accusation that the dad was legally drunk--only under the influence.

 

[Ozark_Sophist]

To the OP, I don't believe changing the exchange location was appropriate--regardless of what your attorney determined. I do support you in questioning the father's level of intoxication. However, I would have called the police even after he left without the child and reported him as a probable drunk driver. Hopefully, the police could have stopped him and determined his level of intoxication.

 

[Ohiogal]

OG, I understand that you have answered the exact question that was asked from a strictly legal standpoint...which is what this site is for. But I'm curious....what if Dad WAS drunk and Mom let the kid go because "it's in the court order" and Dad kills or maims the kid. COULD she face any legal charges for allowing her child to get in a vehicle with somene she suspected to be under the influence? Or would the attitude be "she didn't have a choice?" As screwy as our system is, it seems like this was no win situation legally..."sorry but the court order said you HAD to let him go, but you shouldn't have let him go if you thought Dad was drunk."

From a legal standpoint I am correct. Here is the thing -- the more proof mom has to provide for the court the less likely she would be found in contempt. Was dad attending AA when they divorced? Was dad convicted of DUIs in the past with the kids in the car or on weekend when the kids were in his custody though maybe not in the car? Was he convicted of DUIs when they were married? One beer does not a drunk make but it could cause an odor on the breath. And so could other things like mouthwash (which has alcohol in it).
It is a hard choice but mom has to follow a legal court order. Unless mom can prove dad was drunk, she is asking for trouble by preventing the child from going.
If dad is habitually drinking then mom needs to get a court order allowing her to prohibit the child to go if she smells alcohol on dad's breath -- and of course dad would have the same right.