What is a sobriety provision?
A sobriety clause is a stipulation that can be added to any custody agreement, though they are seen most often in high-conflict child custody cases. These clauses can take many forms, but many courts will not approve clauses that require the custodial parent to be sober at all times. In addition to being virtually impossible to monitor, that requirement would also strip the custodial parent of the ability to drink alcohol on special occasions, such as weddings and holidays. Instead, sobriety clauses are typically focused on the days that the child is with the parent. The clause specifies that the parent may not consume any intoxicating substances while caring for the child, including alcohol . It also specifies the penalties for violating that sobriety clause. In some cases, sobriety clauses specify that the child may visit with their non-custodial parent only when supervised by another adult. In other cases, the child visits with the non-custodial parent may be lost, at least until the non-custodial parent has proven their sobriety. In any case, sobriety clauses are important tools for ensuring the rights of children. When an adult parent drinks heavily, they may endanger their children. Sobriety clauses help to protect children by eliminating that risk.
Legal ramifications of a sobriety provision
When an individual agrees to use an ego booster by way of the sobriety clause, he or she is doing so voluntarily, meaning that these clauses are generally enforceable in Canada like other clauses in contracts. They are not a punishment for a parent’s previous use of drugs or alcohol, and there is no potential for jail time associated with their non-compliance. Instead, the consequences vary depending on the terms of the contract in question, and courts may or may not enforce these agreements depending on various factors. Courts generally will not re-write contracts when enforcing them, but they also won’t enforce them if they are against public policy. Although public policy analyses are case-specific, most judges will not enforce sobriety clauses if the costs associated with the clause are so serious that they can’t be recognized as a "reasonable consequence" under the circumstances. While some courts may find clauses requiring parents to abstain for a specified period of time non-enforceable, others may enforce them if the parents are prepared to bear those costs for the sake of their children. Essentially, if a parent’s drinking has been so dangerous that they must comply with a sobriety clause, it can be argued that they need quite a bit of help before they can safely spend time with their kids. In that case, the hazards of non-compliance with the clause could potentially include the children’s death at their hands. It’s important to note that this isn’t about finding someone guilty before he’s committed a crime. Rather, it’s about not allowing the children into danger in the first place. Due to its high costs, most often, the only potential consequence to the clause requires a breach of the term. Cases such as S.(A.) v. C.(M.V.) did just that, with the father breaching the contract, only to have his parental access modified due to his refusal to comply with the sobriety clause. In fact, in this case, if he chose to comply with his sobriety clause, then the mother’s supervised access would be modified to unsupervised access with the children. While this was certainly a strong incentive to comply, it is even more pressing when parents have a history of domestic violence towards each other or their children. When a sobriety clause is enforced and complied with, the children, the non-addict parent, and even the addict, can be given a new opportunity to enjoy a healthy, well-rounded relationship. Without these contracts, the rehabilitation process can become disrupted due to an addict parent’s inability to "measure up." Not only does this frustrate the addict, it can create additional risks for the children involved.
Effects of sobriety provisions on custody
In cases where one parent has a history of substance abuse, or storms of substance abuse arise in a more innocuous fashion, judges have the authority to impose sobriety clauses on individual parents and families. A sobriety clause may be imposed after the court has determined that an individual demonstrated the need for such a clause.
To be eligible for such a clause, the court must also find that imposing the clause would not interfere with the other parent’s parental rights and responsibilities. Parental interests remain at stake, because the sober lifestyle represented by a sobriety clause isn’t a lifestyle that individuals can necessarily revisit while parenting on a shared schedule. Thus, a judge will need to take the judge’s opinion on whether the sober lifestyle may or may not put up barriers for the individual to share parenting time. How might sobriety clauses affect parenting time? Stated simply, sobriety clauses may allow the non-addicted parent to have some extra say over when and how the addicted parent interacts with the children.
For example, judges have been known to require that the addicted parent be sober when interacting with the children and spending time on the grounds of a particular property (such as the marital home where they continue to live together). Because sobriety may often go hand in hand with therapy and self-improvement programs, judges may also disallow the addicted parent from being allowed to take the children to such programs or to use transportation or tools (like phones) that are accessible and/or provided by the self-improvement program. Often, the sober parent maintains primary responsibility for determining when and how the addicted parent is allowed to interact with the children. This does not always equal custodial rights and responsibilities, at least not in the traditional sense.
Instead, the sober parent may have the ability to choose supervised visitation schedules, times and locations, and to make decisions about when separate transportation should be used to shuttle the addicted parent into and out of a particular visitation. Disturbingly, such sobriety clauses should not act as a free pass to the sober parent in purporting whether or not the other parent is sober. For all that the courts do to assist in false allegations, it would not be wise for anyone going through a divorce to push too far. I recently came into a case in which the wife did exactly this. More information to follow.
How to draft a sobriety provision
The key to creating an effective sobriety clause is to expressly spell out the situations in which the clause would be triggered. Is a breathalyzer test required? What are the potential consequences of a positive reading? If the clause includes verbal confirmation that the fining parent has not consumed alcohol, are there any instances in which the clause would not be triggered? Any and all of these questions and more should be answered in detail in the clause, as leading the reader to make assumptions will only create unnecessary ambiguity and potentially lead to disputes down the line.
Assuming that a testing mechanism will be required, there are a number of options for which parties can choose, including:
Regardless of the specifics, the clause should clearly state the potential consequences of a positive test. In this context, there are two principal options: (1) a material change in the visitation schedule, or (2) the imposition of monetary penalties . Both can be used individually, or they can be used together, but there must be an express and clear explanation of how the clause will impact the schedule and what the monetary penalties will be. There also needs to be a defined plan in the event that both the custodial parent and the visiting parent have consumed alcohol.
Another important consideration is how the clause will apply when the substance is not alcohol, but one parent believes it to be alcohol. For example, if a parent is taking a substance such as NyQuil, which does contain alcohol, does the clause apply? The answer to this question, and others like it, will depend entirely on the language of the clause.
As with any other contractual provision, it is important to remember that clarity is key when drafting a sobriety clause. The most common problems with these clauses arise when a reader has to make an assumption, rather than being able to rely on what has been expressly stated.
Sobriety provisions FAQs
Q: How is sobriety verified in a custody agreement that has a sobriety clause?
A: Sobriety is typically verified through random urine tests or direct observation of the children when they are with the parent. Depending on the specifics of the agreement, the other parent may also have the right to retain the services of a monitoring company that will send someone to witness the drop off and pick up of the children. Many clauses will require someone to test the parent prior to the pick up and the drop off of the children. The cost of theses tests is usually shared between the parents.
Q: Does the schedule for sobriety tests ever limit when certain medications can be taken?
A: It is possible for the schedule for sobriety tests to limit the time when certain medications can be taken. This generally only applies to those that have a risk of producing residual effects. In this instance, if, for example, the parent needed to take a prescription medication every three hours , he or she would need to take the medication in the window of time specified.
Q: What happens if the other party becomes aware of a future event that could impact the parent’s sobriety?
A: If the sober parent learns of a future event that could impact the parent’s sobriety (for example, a wedding, or a family reunion in another state), they should consult with the court before modifying the sobriety terms in their agreement. If the event could interfere with the sobriety terms, the change should be made by the court.
Q: Are there times when these clauses are not ideal for children?
A: Sometimes these clauses can be difficult for children to handle. For example, if the periods in which the sobriety tests must be submitted do not coincide with the child’s behavior, it can create difficulty for the sober parent to stay sober. Additionally, sometimes these clauses can reinvigorate a minor’s desire to use the substance that the sober parent is trying to protect them from.