My daughter continues to return home talking about her dad drinking while she’s with him. This last visit he took her to an event and she said he was drinking at the event and he drove them home. She even made it a point to defend the behavior by telling me he drank two beers (that he took her to the gas station and bought and they were the big tall cans she said) and took them to the event and “he drank them at the beginning so there was time between so he wasn’t drinking and driving”, she told me. I don’t drink, so she doesn’t hear this kind of loophole dialogue from me or anyone we spend time with. My daughter has also told her therapist that her dad drinks. His current wife, who he’s separated from, has an emergency custody order in effect right now that states that he habitually drinks and drives intoxicated with her daughter in the car (mind you her daughter and mine were visiting on the same weekends prior to this emg order taking effect), so the concern is legitimate for my daughter’s safety and well-being, but what can I do? My daughter is only 7 years old and my last atty had a habit of telling me anytime I mentioned anything my daughter would say was hearsay and not admissible in court and that she’s too young to testify, so, if this is still true, what are my options? Can I refuse to send her for visitation? I have primary physical custody and I have pictures from social media of him with a beer in front of him and our daughter present in other photos of the same event…would this be substantial enough evidence to show cause combined with her therapist’s testimony, should he decide to file contempt and show cause against me? I have to protect my daughter, but getting myself held in contempt and, possibly put in jail doesn’t protect her either. It scares me to send her there knowing that these things are happening and I’m afraid if I do nothing that I will be getting a call that he’s been arrested for DUI with her present or, worse, that he’s gotten them in an accident and she’s been injured or killed and I sent her there. Please tell me what options I have.
If the father’s drinking was not an issue when the original custody order was put into place, or the issues had not come to light, and now the drinking is an issue, you may be able to file a motion to modify the custody order based on a substantial change in circumstances affecting the wellbeing of the minor child.
Your evidence would come from other people: the current wife with the emergency order and your daughter. It’s very unusual for a 7 year-old to testify but judges may allow it if the child is the only witness to an event.
It would also be a good idea for you to hire a PI to follow the father and gather evidence as to how much he drinks and how much alcohol he buys when your daughter is with him. This would be the best evidence and would be admissible at trial.
You can also make a report to Child Protective Services if you believe there is an abuse or neglect situation.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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