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Court Resolves Custody Issue Surrounding DWI Arrest


According to a New York DWI Lawyer, an alcoholic father appealed that the court should grant him full custody of his child without any visitation rights to the mother. The mother was granted sole legal and physical custody with visitation to the father. The couple had been before the Family Court on numerous occasions in the course of which the father’s alcohol dependency had been a factor in visitation. He had previously been ordered to successfully complete alcohol treatment before unsupervised visitation would be allowed and was prohibited from consuming alcohol for 24 hours prior to or during visitation.

A few months after the order was entered, another series of proceedings were commenced between the couple after the mother refused to turn the child over for visitation one afternoon because the father showed up visibly intoxicated. The incident prompted the father to file violation and modification of custody petitions. The mother, in turn, filed a modification petition alleging that the father was once again consuming alcohol on a regular basis and seeking, among other relief, to suspend visitation pending successful alcohol treatment and a family offense petition, alleging that the father made repeated threats to remove the child from the state. In her modification petition, the mother also noted that the father had recently been arrested on another alcohol-related offense.

A New York DWI Lawyer said that based on records, the Family Court dismissed the father’s petitions for failure of proof and modified the prior order by directing him to undergo alcohol treatment and permitting supervised visitation on the condition of his active engagement in such treatment. It also denied a motion for a new trial.

The father argues that Family Court’s finding that he was intoxicated on the afternoon in question was not in accord with the evidence. The determination of the Family Court, which observed and heard the testimony of all witnesses, is entitled to great respect and will not be disturbed unless it lacks a sound and substantial basis in the record. The mother’s undisputed testimony established that she denied the father visitation on the afternoon in question out of concern for the child’s safety. According to the mother, when the father arrived, he almost fell over while getting out of his car, smelled of alcohol and admitted that he had been drinking. He then refused to take a breathalyzer test when the two proceeded to a local police station in an attempt to resolve the dispute. While a bartender testified that she served the father only one nonalcoholic beer an hour or two before this scheduled exchange, the court found that his testimony did not establish that he had not been drinking prior to his encounter with the mother. Under the circumstances,a Nassau County DWI Lawyer said, the record fully supports the court’s determination that a sufficient change in circumstances, namely, the father’s resumption of drinking, warranted a modification of the prior order and that such modification was in the child’s best interest.

The father also argues that the Judge became an unsworn witness against him thus mandating her disqualification but the court was not persuaded. The Judge was intimately familiar with the issues plaguing the couple, particularly the father’s demonstrated need for alcohol treatment, since she presided over all prior Family Court proceedings. At the initial appearance, the Judge denied the father’s request to reinstate visitation, but noted that she would reconsider the application in the event he availed himself of treatment, which, she noted, he had successfully completed in the past.

The Judge also informed counsel that she recently arraigned the father, in her capacity as a local town judge, following his felony DWI arrest and stated her observations of him in the course of that matter. In denying the father’s subsequent request for disqualification based on her involvement in the criminal matter, the Judge stated that she could impartially and fairly preside over the instant proceedings despite the same.

While the father argues that it was improper for the Court to draw an adverse inference against him for refusing to comply with an interim order directing a complete substance abuse evaluation, there is no indication in the record that the court in fact drew a negative inference against the father for any reason or that the court imposed any type of sanction for his refusal to comply with the order. Thus, the argument is without merit.

Couple dispute may possibly be the hardest case to handle for a child is always caught in between. No parent would want to entrust his child in the hands of an intoxicated person. If you are in this kind of situation, the lawyers of Stephen Bilkis & Associates can help you win your case.

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