When you’re trying to gain custody, or if you’re trying to renegotiate a custody arrangement, you want to be on your best behavior. Anything that makes you appear to be an unfit parent could be used against you in court. Remember, it’s the judge’s duty to work for the best interests of the child.
So when you’re accused of a crime, such as DUI, it can be a stressful time. Suddenly, it might feel like you’re in danger of losing custody. So, can a DUI conviction in Colorado affect the determination of child custody?
The short answer is that in most cases, a DUI alone won’t prevent you from having custody. When the judge looks at your DUI, they’ll be looking at it in the context of a lot of other information. They’ll see your entire criminal history, they’ll be looking at your earnings, your job, and possibly reports from a social worker. That said, under certain circumstances, a DUI can affect your custody arrangement, or even disqualify you from custody altogether.
Here’s everything you need to know about DUIs and child custody in Colorado.
How Can a DUI Conviction Affect My Custody Arrangement?
First things first, let’s state the obvious. When you’re trying to get custody of your kids, having a DUI on your record doesn’t make you look good. If the judge finds out about your conviction, it’s going to have an impact on their decision. And rest assured, if your ex-spouse’s lawyer is halfway competent, the judge is going to find out.
So what’s the worst case scenario in the case of a DUI conviction affecting child custody? In the absolute worst case, you might lose custody altogether. But in less severe scenarios, you might be allowed only supervised visits. If there’s a shared custody arrangement, the judge may change the child’s primary residence or reduce your share of the parenting time. Even if they don’t change your custody arrangement, you might be banned from driving with the child in the car.
Another thing to consider is whether your DUI is going to cause you to lose your driving privileges. Even if you’re an otherwise-upstanding citizen, you may struggle with parenting without access to a reliable vehicle. This could be a factor when the judge weighs what’s in the child’s best interest.
Does a DUI Conviction Make Me an Unfit Parent?
Not all DUIs result in a loss or reduction in custody; it’s more complicated than that. So when can a DUI conviction in Colorado affect the determination of child custody?
Colorado allows for no-fault divorce, so a DUI won’t have any effect on whether a divorce is granted. However, in the case of child custody, either parent can ask for the other parent to be declared “unfit,” meaning they shouldn’t be granted custody.
The good news is that ordinary alcohol use is not a factor in child custody. Alcohol only becomes a factor when it causes a parent to be unable to care for their children. In other words, for the judge to declare that you are an unfit parent, your ex-spouse must be able to provide evidence that your alcohol use renders you unfit.
Evidence of Unfitness as a Parent
To prove unfitness, your ex-spouse will need to work with a lawyer to gather and submit their evidence, and this evidence has to meet certain legal standards. Your ex-spouse can’t simply make up claims and submit that as evidence. This evidence includes police reports, arrest records, and photographs.
In other words, there’s more to think about than simply a DUI. For example, have you had previous trouble with the police due to alcohol use? This doesn’t necessarily have to mean an arrest and conviction. For example, if the police have been called to your house multiple times, the judge is going to take that into account.
Social media is another thing your ex-spouse may look at. If your Facebook page is packed with party videos, that isn’t going to look good in court. Finally, your ex might call friends and family to testify.
Even if your ex-spouse is able to meet this standard, they must also be able to prove that your children are in danger when they’re in your custody. Typically, this means establishing a pattern of behavior, as opposed to looking at one event.
This is good news if this is your first DUI and you have no prior record. Divorce is a stressful time, and even people who don’t have a problem with alcohol can make a one-time mistake. Judges understand that, so a first-time DUI typically won’t hurt your custody arrangement.
Can Multiple DUI Convictions Affect the Determination of Child Custody?
On the other hand, if you have had multiple DUIs, or if you have a record of arrests or domestic violence, your DUI can have a significant impact. This is because it affects what attorneys call your “moral fitness.” Basically, the law is saying that you have a pattern of irresponsible behavior.
If the court finds that you’re an unfit parent, the judge will sometimes give you an opportunity to demonstrate your fitness. Typically, this means attending counseling or successfully completing a rehab program.
Finally, all this changes if your children were in the car when you got your DUI. This will almost always be seen as a direct threat to their well-being. It can even result in charges of child abuse or endangerment. In some cases, your ex may file a petition to have your children removed from your custody.
Partner with an Experienced Colorado Attorney
As you can see, Colorado child custody law and DUI are complex subjects. You need an experienced attorney who can fight for you at every step of the process.
Mark S. Rubinstein, P.C.‘s lawyer has more than two decades of experience in criminal charges defense, DUI charges defense, and injury law. Whether this is your first DUI or your seventh, we’ll work hard to help you get the best possible outcome for your case. Contact us today for a free consultation.