By Erik Carter
Indiana Divorce Lawyer, Cordell & Cordell
Many mothers will accuse fathers of excessive use of alcohol, in the mistaken belief that a father must prove that he doesn’t drink too much. In reality, every accusation must be supported by credible evidence.
The person making the accusation has the burden of proof of showing that there is some credible evidence (the standard varies from state to state, so check with your attorney concerning this) that the accusation has some merit.
If she can carry her burden of proof, then you must respond to the accusation.
Let me take a moment to address the situation where you actually do drink too much.Even if you don’t think you do, if your lawyer thinks the evidence will support such an accusation, then you need to address your drinking habits in some appropriate fashion.
Judges generally are very reluctant to allow alcohol abuse around children. The risk of criminal activity, the risk of harm, and the risk of neglect due to your being drunk is simply too high for judges to ignore, and they take a very keen interest whenever the evidence show s a drinking problem. So if you must address your drinking, then do it as soon as possible.
Make sure you discuss your use of alcohol with your lawyer, and especially what she will say about your use of alcohol. Do not minimize any incident where you and your buddies got drunk. Don’t say you have a beer or 2 watching the game if it’s really 8 or 10.
Make sure your lawyer knows any arrest where alcohol was involved, even if it was not an alcohol-related arrest. For example, if you were pulled over for DUI but you pleaded guilty to reckless driving, or if you were arrested for fighting, but it occurred in a bar’s parking lot, discuss it with your lawyer.
But what if you don’t have a drinking problem, and your ex is simply trying to lay a false accusation against you, or is simply exaggerating 1 or 2 incidents?
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The first step is to attack her ability to carry her burden of proof. Distinguish the incidents that she brings up that occurred in front of the kids as opposed to those that were outside the presence of the children. Point out incidents that occurred remotely in time (as opposed to closer to the time of the hearing or the filing of the petition). Emphasize incidents where she is the only witness.
Attack the credibility of her witnesses. If her best friend is testifying to an incident, make sure you point out how long they have been friends. You might even testify to any “bad blood” between you and the friend, because she or he may be testifying this way to get back at you.
Sometimes the court will find that she has carried her burden of proof. Sometimes the court will simply ask you to respond, and then make a decision as to whether the accusation has merit. Either way, you need to be prepared to respond to the accusation.
If you can point to the lack of external evidence, do so. For example, point out that the police were not called concerning an incident she testified to. Point out that you have held a job or several jobs, without being disciplined for alcohol use.
If the police were called, make sure you have reviewed the police report prior to the hearing. Many times, police officers will make note of a person’s condition, so a lack of notes (such as nothing regarding slurred speech, belligerent behavior, smell of alcohol on breath, etc.) can be used to show that these things were not present.
The best course of action is to simply not drink around your children or your ex. Judges will often question why a person – mother or father – feels the need to have alcohol when they have their kids, and there is not an answer that a judge will find acceptable.
And drinking around your ex is a no-win proposition. Rarely will she admit that you weren’t drunk. And even more rarely will the words, “Judge let me explain…” carry the day.