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May 26, 2022

Alcohol Use Disorder: What Family Law Attorneys Need to Know

By: Soberlink

This article is published in connection with the sponsorship agreement between Soberlink and the ABA.

Family law attorneys frequently handle divorce and child custody cases where one party's alcohol consumption is a major source of conflict. Our society once viewed persistent misuse of alcohol as a moral failure, a character flaw that was scorned. But medical experts have classified Alcohol Use Disorder (AUD) as a chronic illness, a brain disorder, and not a weakness in character.

Understanding AUD as an Illness

The recognition of Alcohol Use Disorder as an illness does not diminish its destructive impact on the marriages and family relationships of those living with the condition. According to the 2020 National Survey on Drug Use and Health conducted by the US Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration, twenty-eight million people aged twelve and over have AUD.

When a party in Family Court has AUD, the court and the attorneys face a dilemma: protecting the spouse and children from the harmful effects of the illness while also respecting the ill parent's right to enjoy a safe and responsible relationship with their family.

Old and New Solutions

Until recently, Family Courts routinely ordered the supervision of a noncustodial parent’s visitation to shield children from alcohol misuse before or during visits. While effective, having an unrelated stranger present during visits can create an unnatural distance between the noncustodial parent and child and adds a substantial cost to the process. Courts have also received complaints about the last-minute rescheduling of visits caused by social workers' calendar changes.

The availability of remote alcohol monitoring technology reduces the need to rely solely on human supervision to keep children safe when one parent has AUD. New technology exists in portable, handheld devices with facial recognition capability that detects alcohol use and measures its level in the body. The facial recognition feature prevents anyone other than the subject from contributing a breath sample. The use of these remote alcohol testing devices, such as those produced by Soberlink, is increasingly being adopted by Family Court Judges as a more practical, cost-efficient solution to a long-term issue.

Using Technology Defensively

Some parties employ desperate tactics and false allegations to prevail over other parties in custody and alcohol cases. Attorneys who represent clients unfairly accused of chronic alcohol misuse can ask their clients to utilize remote alcohol monitors to provide proof of sobriety and demonstrate the falsity of the alcohol-related charges. The devices collect and store alcohol testing data and report the results using easy-to-read Advanced Reporting software. The reports color-code and highlight any elevated readings and display them in a calendar format for simplified reading.

Alcohol Use Disorder is often cited as the source of marital discord because it can become progressively more severe unless treated. Dr. Alan M. Gordon, Medical Director of the Institute for Prevention and Recovery at RWJBarnabas Health and Addiction Psychiatrist, emphasizes the importance of teaching Family Court professionals and matrimonial law attorneys how to distinguish between problem drinking and physical dependence. 

Assessing Your Client’s Alcohol Use

"Knowing if the person is physically dependent on alcohol and needs detox is more complicated and determined by the fact that the body has become more used to a certain amount of alcohol to sustain its equilibrium," says Dr. Gordon. "It's almost like a diabetic needs the right amount of insulin. You take it away suddenly and you throw the body into shock."

Detox is commonly misconstrued as a form of rehabilitation rather than a tool to stabilize brain function and lessen the severity of withdrawal symptoms. Therefore, detox treatment is not an end-all solution but a means of safely adjusting to the absence of alcohol.

Demanding that clients abstain from alcohol can have dire physical ramifications. They may feel pressured to suddenly stop drinking to spend time with their children, increasing their risk of withdrawal complications. Dr. Gordon urges Family Law professionals to obtain an evaluation for medical treatment for clients exhibiting signs of alcohol dependence.

“It’s tricky, and you know it’s not reasonable to expect a Family Court professional to make the determination that they need detox, but there could be clues based on all the information that you can gather that this person is likely to need detox,” explains Dr. Gordon.

A specialist’s examination is not always feasible in the Family Court system. In this instance, a client can ask their primary care physician to give medical clearance. While the medical clearance evaluation may be less comprehensive, it accomplishes one major feat: providing the doctor with an opportunity to have a much-needed conversation with the patient about their alcohol use.

Without training in recognizing the severity of someone’s AUD, Family Court lawyers and other professionals may feel ill-equipped to make a judgment about their client. But with enough information, counsel can form a reasonable belief about the client’s need for medical intervention and help them obtain the necessary treatment.

DSM-5 Alcohol Use Disorder Criteria

The Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), updated its criteria to identify the stages of Alcohol Use Disorder.

  • AUD is indicated when any two of the following symptoms are present. The severity of the AUD is determined as follows:        
    • Mild: The presence of 2 to 3 symptoms
    • Moderate: The presence of 4 to 5 symptoms
    • Severe: The presence of 6 or more symptoms


In the past year, has your client:

  • had times when they ended up drinking more, or longer, than intended?
  • more than once wanted to cut down or stop drinking, or tried to, but couldn’t?
  •  spent a lot of time drinking? Or being sick or getting over other aftereffects?
  • wanted a drink so badly they couldn’t think of anything else?
  • found that drinking—or being sick from drinking—often interfered with taking care of their home or family? Or caused job troubles? Or school problems?
  • continued to drink even though it was causing trouble with their family or friends?
  • given up or cut back on activities that were important or interesting to them, or gave them pleasure, in order to drink?
  • more than once gotten into situations while, or after, drinking that increased their chances of getting hurt (such as driving, swimming, using machinery, walking in a dangerous area, or having unsafe sex)?
  • continued to drink even though it was making them feel depressed or anxious or adding to another health problem? Or after having had a memory blackout?
  • had to drink much more than they once did to get the desired effect? Or found that the usual number of drinks had much less effect than before?
  • found that when the effects of alcohol were wearing off, they had withdrawal symptoms, such as trouble sleeping, shakiness, restlessness, nausea, sweating, a racing heart, or a seizure? Or sensed things that were not there?

Acting as your client’s best advocate often requires hard truth-telling. Building trust in an attorney-client relationship depends on a client’s ability to believe in counsel’s honesty and commitment to getting the most favorable result possible. Discussions surrounding a client’s misuse of alcohol are difficult but crucial to protecting the client’s health and improving the likelihood of success in court.

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