Driving while under the influence of alcohol or drugs can certainly result in an arrest and a DUI charge. But if you are driving in that condition with your minor child in the vehicle, the charge can be more serious and the outcome much worse. You may face an additional charge, if convicted of a DUI, of child endangerment or even second-degree child abuse (depending on the state). So if you find yourself in this situation and are asking, “Can I lose my child because of a DUI?”, here’s what you need to know.
Can I Really Lose My Child?
The short answer to this question is . . . it depends. Whether your child can be taken away or you lose parental rights on being convicted of a DUI depends on several factors and the state. Each case is determined on an individual basis according to specific facts of each case. However, if you are arrested for DUI and have your child in the car with you at the time, you are potentially facing child endangerment (and possibly child abuse) charges. And these charges, of course, weigh heavily in the final outcome – and you may lose your child.
The Legal Standard
Depending on the state, a first-offense DUI conviction will usually mean a jail sentence of three to 180 days. And if you are a custodial parent or in the midst of custodial proceedings, that DUI, along with the jail stay, could cost you your parental or visitation rights. The prevailing legal standard applied by judges to determine custody is that of “the best interests of the child.” This means that the determination is made on the basis of how the DUI and surrounding circumstances reflect on your fitness – whether you are responsible and capable enough – to properly care for a minor and keep her safe.
Without a Child in the Vehicle
If you are thinking, “There’s no way I could lose my child because she wasn’t even in the car,” then you might want to reconsider. Even in the case of a DUI arrest when there was no child in the vehicle, the family law court may still get involved. After reviewing events and pertinent data, the court may conclude that, although no child was in the vehicle on this occasion, it may be reasonable to believe that it has happened in the past and may happen again. In this scenario, a court-appointed social worker will investigate further by conducting interviews and searching vehicles and homes. The goal is to determine whether there are any indications that the safety or well being of any children is a concern.
Possible Second-Degree Child Abuse
In this worst-case scenario, the answer to the question “Can I lose my child because of a DUI?” just may turn out to be “Yes.” Depending on the state, a parent arrested for drunk driving with a minor child in the vehicle may be charged with second-degree child abuse. The potential for this charge lies in the fact that drunk driving constitutes “reckless behavior by a parent.” A conviction for second-degree child abuse can carry a penalty of up to four years in prison, and the certain outcome is that Child Protective Services will conduct an investigation into your fitness as a parent and the continuance (or not) or your parental rights.
Potential for Loss of Custody or Visitation Rights
When a DUI conviction occurs, the other parent often seeks to get custody or terminate visitation rights by means of a sole managing conservatorship. In this case, the non-DUI parent typically argues that the DUI parent cannot provide a safe or stable environment now owing to the criminal record. If the non-DUI parent is granted sole managing conservatorship, he or she is empowered to make all decisions on behalf of the child(ren), and visitation rights may be denied to the DUI parent because it has been determined that that parent cannot provide safe transportation.
What You Can Do
“Can I lose my child because of a DUI?” Yes, it is indeed a very real risk. But it is not a certainty, so you need to take measures to prevent that outcome. There may have been, for example, certain mitigating or extenuating factors, such as the police officer not having probable cause to pull you over. If, then, you have children and have been convicted of a DUI, the services of an experienced attorney are almost a necessity. Contact a member of the Trusted Lawyers Network at TrustedLawyers.com for further information on your case.