A Georgia judge can order a parent not to drink while the child is in that parent’s care, and can let the other parent call for alcohol tests. But the smell of alcohol alone does not prove a parent was impaired.
What the Statute Says
For a parent who has committed family violence, OCGA 19-9-7(a)(4) lets the judge order that parent “to abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance” during visits and for 24 hours before them.
A Condition on Drinking
In Adams v. Carver, 319 Ga. App. 874 (2013), a legitimation case, the father often drank heavily and had been violent toward the mother. The mother had been convicted of cruelty to children after fighting with another woman in front of children, and the trial court named the father the primary physical custodian. It also ordered that he not drink while the child was with him, and let the mother request an alcohol test any time the child was to be in his custody, with the mother paying if he passed and the father paying if he failed. The Court of Appeals affirmed.
Smelling Alcohol Is Not Proof
In Lacy v. Lacy, 320 Ga. App. 739 (2013), while a divorce was pending, a father asked for an emergency change of custody, claiming the mother had driven under the influence with one of the children in the car. The only evidence was that he and a police officer smelled alcohol on her breath. The officer saw no other sign of intoxication and gave no sobriety tests. The trial court denied the motion, and the Court of Appeals affirmed, explaining that the odor of alcohol “shows only the presence of alcohol and does not support an inference that the driver is intoxicated.”
How much a parent’s drinking counts in the custody decision itself is covered in our post on substance abuse and custody.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!