USE IT AND LOSE IT - SUBSTANCE ABUSE ISSUES IN DIVORCE

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1 USE IT AND LOSE IT - SUBSTANCE ABUSE ISSUES IN DIVORCE LYNN KAMIN AMY N. MONTGOMERY Short Jenkins Kamin, L.L.P. Two Greenway Plaza, Suite 600 Houston, Texas / State Bar of Texas 32 ND ANNUAL ADVANCED FAMILY LAW COURSE August 14-17, 2006 San Antonio CHAPTER 39

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3 LYNN KAMIN Attorney at Law Board Certified Family Law SHORT JENKINS KAMIN, L.L.P. Two Greenway Plaza, Suite 600 Houston, Texas (713) (713) (fax) EDUCATION: Legal: South Texas College of Law, J.D., 1988 Graduate: San Francisco State University, University of California, Berkley, M.A., 1975 Undergraduate: University of Arizona, B.A., 1968 SPECIALIZATION: Board Certified, Family Law Texas Board of Legal Specialization PROFESSIONAL AFFILIATIONS: Texas Academy of Family Law Specialists American Academy of Matrimonial Lawyers Fellow Texas Board of Legal Specialization Board Certified in Family Law College of the State Bar of Texas Houston Bar Association Family Law Section Board of Directors 1991, 1993, 1995, 1996 Secretary 1995, 1996 Editor Family Law Handbook 1996 Chair-Elect 1997 Chair Immediate Past Chair Houston Bar Association Judicial Selection Committee Houston Bar Association Probate Bench/Bar Committee 1996, 1998 Houston Bar Foundation Fellow Houston Bar Foundation Board 2002 Chair - Houston Bar Foundation 2004 Immediate Past Chair Houston Bar Foundation 2005 Burta Rhodes Raborn Inns of Court Family Law Treasurer Burta Rhodes Raborn Inns of Court 2001; 2002 Chair 2004 Immediate Past Chair Gulf Coast Family Law Specialists Board of Directors 1995, 1997, 1999 Child Abuse Task Force Member Children s Assessment Center Advisory Board 1993 to 2000 Family Law 2000 Task Force PROFESSIONAL AWARDS/HONORS: Recipient of the 2005 Annual David Gibson Award for Professionalism and Excellence in the Practice of Family Law. Presented by the Gulf Coast Family Law Specialists. Recipient of the 2005 Annual Burta Rhodes Raborn Inn of Court Mentor Award. AUTHOR & LECTURER:

4 Extraterritorial Custody Issues The UCCJEA, PKPA, and The Hague Convention Advanced Family Law Seminar, San Antonio, Texas 2001 Direct and Cross Examination of a Mental HCE, Family Law Section, HBA, Houston, Texas Meeting and Making Objections, Family Law Section, HBA, Houston, Texas, Nuts and Bolts ; Serving as Ad Litem, Houston, Texas Dealing with Social Issues, Ad Litem, and CASA Volunteers: A Curse of a Blessing? Advanced Family Law Seminar, San Antonio, Texas 1998 Child Support: Issues & Modification, University of Houston, Houston, Texas, Child Support: Issues & Modifications, University of Houston Family Law Practice Seminar, Houston, Texas, 1997 Retirement, Pensions, and That Ugly Word.QDRO s, Advanced Family Law Seminar, San Antonio, Texas, 1997 Valuation and Division Workshop, Advanced Family Law Seminar, San Antonio, Texas 1997 Interim Attorney Fees, American Inns of Court, Family Law, 1996 Handling Sexual Abuse Allegations, Advanced Family Law Seminar, San Antonio, Texas 1996 Houston Bar Association Family Law Handbook, Editor, 1996 Modifying Child Support, South Texas College of Law, Houston Volunteer Lawyers, 1994, 1995 and 1996 Maximizing Your Talents in Educating your Lawyers on What You Can and Cannot Do, Fifty Annual Family Law Seminar for General Practitioner and Legal Assistant, South Texas College of Law, 1995 The Role of Mental Health Care Experts in Child Custody Cases, Baylor College of Medicine Houston, Texas. The Role of Attorney Ad Litem in Child Custody Cases, Child Abuse Task Force Houston, Texas The Role of Attorney Ad Litem in Child Custody Cases, CASA Volunteers, Harris County, Texas. Serving as Ad Litem: The Nuts and Bolts Director, Houston Bar Association Family Law Section, 1994, Houston, Texas. Custody and Conservatorship, South Texas College of Law, Fourth Annual Family Law Seminar, 1994

5 AMY N. MONTGOMERY SHORT JENKINS KAMIN, L.L.P. Two Greenway Plaza Suite 600 Houston, Texas (713) (713) (Fax) EDUCATION: University of Houston Law Center, Houston, Texas - J.D., May 2004 Southwestern University, Georgetown, Texas Bachelor of Arts, May 2000 Cum Laude LAW SCHOOL AFFILIATIONS AND HONORS: Houston Journal of International Law Interscholastic Mock Trial Team Champion, 2003 Hippard Open Mock Trial Competition Finalist, 2002 Hippard Novice Mock Trial Competition The Order of Barristers BAR ADMISSIONS, LICENSES, CERTIFICATION: Licensed by Supreme Court of the State of Texas, 2004 A.A. White Dispute Resolution Center Mediation Certification PROFESSIONAL AFFILIATIONS: American Bar Association, Family Law Section State Bar of Texas, Family Law Section Houston Bar Association, Family Law Section Burta Rhoads Raborn Inns of Court Harris County Dispute Resolution Center Volunteer CO-AUTHOR: "When do the constitutional rights of children ripen?", with Imogen Papadopoulos, University of Texas 2006, Family Law on the Front-Lines.

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7 Use It and Lose It Substance Abuse Issues in Divorce TABLE OF CONTENTS I. INTRODUCTION... 1 II. AN OVERVIEW OF SUBSTANCE ABUSE AND ADDICTION... 1 A. Defining Substance Abuse and Addiction... 1 B. Co-occurring Disorders... 3 III. IDENTIFYING THE SUBSTANCE ABUSE ISSUE IN THE DIVORCE CASE... 3 A. Questions to Ask at the Initial Client Interview... 3 B. Rehabilitating the Client with a Substance Abuse Problem... 4 IV. TEMPORARY ORDERS... 4 A. Representing the Client with the Substance Abuse Problem... 4 B. Representing the Client Opposing the Individual with a Substance Abuse Problem Motion for Psychological Testing/Appointing a Counselor or Psychiatrist Temporary Injunctions Random Drug/Alcohol Testing Request HIPAA Releases... 6 V. PREPARING THE CASE FOR TRIAL... 7 A. Living with Temporary Orders... 7 B. Discovery... 8 C. Private Investigators... 8 VI. FINAL TRIAL... 9 A. Preparing the Client... 9 B. Preparing Witnesses Lay Witnesses Expert Witnesses i. Daubert challenge C. Preparing Exhibits VII. POST-DIVORCE CONSIDERATIONS VIII.CONCLUSION APPENDIX A APPENDIX B APPENDIX C APPENDIX D i

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9 USE IT AND LOSE IT -SUBSTANCE ABUSE ISSUES IN DIVORCE I. INTRODUCTION This article will focus on identifying substance abuse issues and providing practical tips for representing a client who is affected, directly or indirectly, by substance abuse. Whether you are representing the client who has the substance abuse problem or representing the client who is the spouse, parent, or child of an individual with a substance abuse problem, there are many resources available and many creative ways to develop your side of the case. The terms he and his as used in this article are meant to be gender inclusive. There is a distinction between the terms abuse and addiction. This distinction will be addressed in more depth in Section II of this article. However, the phrase substance abuse as used in this article is meant to include abuse and addiction of alcohol and/or drugs, unless otherwise specified. This article is limited in scope and focuses on ideas to be considered by the family law practitioner when dealing with substance abuse issues in divorce. The article does not attempt to address all issues that may arise as a result of a substance abuse problem. Special thanks and recognition goes to Vickie Longwill, with The Council on Alcohol and Drugs Houston, for providing information on community resources, statistics, and the STAR Family Intervention Court, and to Jo Jenkins and Patricia Carter, for allowing the use of portions from their paper presented at the 2005 Advanced Family Law Course. See Joan F. Jenkins and Patricia Carter, Practical Preparations for TRO hearings, temporary orders hearings and trial, 2005 Adv. F. L. Ch. 6. II. AN OVERVIEW OF SUBSTANCE ABUSE AND ADDICTION Alcohol is the most commonly abused substance in Texas. Substance Abuse Trends in Texas, January 2006, available at Approximately 18 million Americans have alcohol problems and 5-6 million Americans have drug problems. The National Council on Alcoholism and Drug Dependence, Facts and Information, available at Over 9 million children live with a parent who is dependent on alcohol or drugs. Id. Substance abuse is a non-discriminating disease and can affect people from all backgrounds, levels of education, and professions. Due to the fact that such a large portion of the population is affected by substance abuse, it is not surprising that this issue often presents itself in family law cases. Family law practitioners who have represented a client with a substance abuse problem or have dealt with a substance abuse issue in their own personal lives 1 are well aware that there is often a stigma associated with drug and alcohol abuse and addiction. Drug abuse and addiction are often viewed as a moral problem. National Institute on Drug Abuse, InfoFacts: Understanding Drug Abuse and Addiction, available at [hereinafter Abuse and Addiction]. However, viewing an individual with a substance abuse problem as automatically morally weak or fundamentally flawed is inaccurate and problematic. Id. Current scientific research supports the view that addiction is a chronic and treatable disease. Id. Despite scientific evidence to the contrary, there are still many myths and misconceptions associated with addiction: MYTH:Anyone who uses drugs too much will become an addict. TRUTH:Not everyone who uses drugs will become an addict. Addiction is a disease and some people are more prone to developing addiction than others. Genetics, environment, and other factors contribute to developing an addiction. MYTH Addicts have no self-control. TRUTH:Addiction is a disease that occurs in the subconscious area of the brain, not under conscious control. MYTH:A person cannot overdose on alcohol. TRUTH:There is such a thing as a lethal dose of alcohol, and a person can die from respiratory depression as a result of drinking too much. MYTH:Marijuana is not an addictive drug. TRUTH:There is a portion of the population that can become dependent on marijuana. MYTH:If a person has an addiction to one drug, he is addicted to all drugs. TRUTHMost people who are addicted to a drug may be dependent on more than one type of drug, but generally are not dependent on all drugs. See Carl Erickson, The University of Texas at Austin, Addiction Science Research and Education Center, Exploding Drug Myths (2005), available at A. Defining Substance Abuse and Addiction

10 Addiction is considered a relapsing, chronic disease. Elaine Gottleib, Brigham and Women s Hospital, The Science of Addiction (2006), available at Addiction is a disease that affects the brain and causes the brain to change in fundamental ways. Id. Addiction is not voluntary, and it is often a relapsing disease. Id. Some behaviors that may indicate a substance abuse problem include: Id. using alcohol and/or drugs by yourself using alcohol and/or drugs to deal with emotional issues or uncomfortable feelings believing you need to drink and/or use drugs in order to have fun Alcohol and substance abuse disorders are also defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM-IV]. Mental health professionals use the DSM-IV to diagnose and develop treatment plans for mental health disorders. According to the DSM-IV, the criteria for substance abuse are as follows: A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household) (2) recurrent substance abuse in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use) (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct) (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights) Id. at Substance dependence is characterized by a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance related problems. Id. at 176. An individual with a substance abuse problem may withdraw from friends, family, and activities in order to spend more time obtaining and using the substance. Id. Often the individual may try to decrease or discontinue use of the substance unsuccessfully. Id. Alcohol abuse is indicated when an individual continues to consume alcohol despite recognizing social or interpersonal complications that result from alcohol consumption, such as missing work, driving while intoxicated, or neglecting responsibilities. Id. at 197. Alcohol dependence is defined as a physiological dependence on alcohol and is characterized by tolerance or withdrawal symptoms. Id. at 195. Individuals with alcohol dependence may spend substantial amounts of time using alcohol even when experiencing adverse psychological or physical consequences such as depression, liver disease, or blackouts. Id. at 196. Alcohol induced disorders may include intoxication, withdrawal, delirium, dementia, psychotic disorder, mood disorder, and sleep disorders. Id. at The National Institute on Alcohol Abuse and Alcoholism defines alcoholism as an illness that includes the following symptoms: cravings (a strong desire to drink) loss of control (the inability to stop drinking) physical dependence (experiencing withdrawal symptoms after drinking) tolerance (the need to consume increasing amounts of alcohol to feel the effect of the alcohol) See What is Alcoholism, available at The National Institute on Drug Abuse also characterizes drug abuse and addiction as an illness. Abuse and Addiction, supra. Individuals addicted to drugs suffer from cravings and usage and cannot quit on their own. Id. There are many different terms used to describe substance abuse issues, and there are many ways to refer to an individual who has a substance abuse problem, such as: alcoholic, addict, user, narcotic, or substance abuser. Consider the subtle distinctions between terms such as disorder and disease or abuse and addiction. Analyzing the different connotations associated with these terms and phrases is useful for understanding the nuances of the substance abuse issue and can also be used to 2

11 effectively develop the theme of your case. For a more detailed discussion of creating the theme of your case see Section III of this article. B. Co-occurring Disorders An individual that has been diagnosed with a mental disorder is 4 to 5 times more likely to develop a substance abuse problem than the average person. National Mental Health Association, Coalition Building and Service Coordination Toolkit for Co- Occurring Mental Health and Substance Use Disorders, (2006), at Mental illness is defined as a disease that causes mild to severe disturbances in thinking, perception and behavior. National Mental Health Association, Stigma: Building Awareness and Understanding About Mental Illness (2006), at Mental disorders may occur as a result of chemical imbalances in the brain. Id. The same factors that contribute to an individual s development of a substance addiction may factor into an individual s development of a mental disorder. See id. There are five major categories of mental disorders: Anxiety Disorders (including Phobias and Obsessive-Compulsive Disorder) Mood Disorders (including Depression and Bi-Polar Disorder) Schizophrenia Dementias Eating Disorders Mental health practitioners became aware of the link between substance abuse and mental disorders in the late 1970s. Center for Substance Abuse Treatment, Substance Abuse Treatment for Persons With Co- Occurring Disorders, Treatment Improvement Protocol (TIP) Series 42. DHHS Publication No. (SMA) Rockville, MD: Substance Abuse and Mental Health Services Administration, 2, 2005, available at Early studies focused on the link between substance abuse and depression. Id. Later studies confirmed that, in addition to depression, there is a wide range of mental health disorders associated with substance abuse. Id. An individual diagnosed with a co-occurring disorder has one or more substance disorders and one or more mental disorders. Id. This individual faces additional challenges because symptoms can overlap making diagnosis and treatment more difficult. Steve Elam, Jaelline Jaffe, Ph.D., and Jeanne Segal, Ph.D., Dual Diagnosis and Treatment for Co-Occurring Disorders (2004), available at Individuals with co-occurring disorders may use 3 substances to self-medicate a mental disorder, which can increase complications by interfering with prescribed medication and disguising the symptoms of the other disorder. Id. Relapse rates for substance use are typically higher for people who have been diagnosed with co-occurring disorders. Id. In order to effectively recover from co-occurring disorders, each substance abuse problem and mental health problem must be addressed. III. IDENTIFYING THE SUBSTANCE ABUSE ISSUE IN THE DIVORCE CASE The best way for a family law practitioner to manage the substance abuse issue in a divorce case is to identify it as an issue from the very beginning of the case. However, getting a potential client to admit he has a substance abuse problem is challenging, especially when considering that denial is a prominent component of most addictions. See Addiction Resource Council, Definitions of Alcohol Abuse and Addiction, available at definitions-of-abuse.html. This issue should, nevertheless, be addressed at the initial client meeting so that the lawyer and the client can begin preparing for temporary orders hearings and, ultimately, the final trial. A. Questions to Ask at the Initial Client Interview In order to identify the substance abuse issue, the family law practitioner could ask the client about substance abuse directly. Utilize questions that illicit how much and how often the substance or substances are used by the client. It is better to put the specifics in the question than to rely on the client to provide a detailed answer on his own. For example, instead of asking, Do you drink a lot of alcohol? ask During a typical week would you say you drink between 15 and 20 glasses of alcohol? A person who is in denial about having a substance abuse problem is used to minimizing the issue so it is easier to start with a large number to make the client feel more comfortable about answering truthfully. Another idea is to prepare a substance abuse questionnaire to include as part of the client information sheet. This questionnaire could include specific and detailed questions or be more general by instructing the client to place a check mark next to issues that are relevant to the case such as substance abuse, domestic violence, and/or criminal activity. A sample of possible questions to include is attached as Appendix A. To adequately prepare your client s case, remember to ask questions about the opposing party also. It is important to know if the opposing party is the one with the substance abuse issue because that will also affect how you prepare your side of the case, including seeking specific relief from the court, as well

12 as preparing for temporary orders hearings and the final trial. B. Rehabilitating the Client with a Substance Abuse Problem If you believe that your client has a substance abuse problem, one of the most positive results in the outcome of the case is for the client to receive treatment. Do not forget that a client with a substance abuse problem may also have an underlying mental disorder and may require additional treatment for each problem. There are numerous resources available to an individual battling a substance addiction. A search of any public phonebook includes contact information for treatment facilities in the area that provide treatment for alcohol and drug abuse and addiction. In addition, a list of several state and national resources are attached to this article as Appendix B. Urban cities may also have specific programs associated with the court system. For example, Houston has The Council on Alcohol and Drugs Houston, which is a nonprofit organization founded in This organization is funded by the United Way of the Texas Gulf Coast, the Texas Department of State Health Services, and private contributions. Services are provided to the community on a sliding scale basis for eligible applicants, and confidentiality is assured. There are many different types of treatment programs available. These programs include shortterm facilities, such as residential therapy and drugfree out-patient therapy. National Institute on Drug Abuse, InfoFacts: Drug Addiction Treatment Methods, at treatmeth.html [hereinafter Treatment Methods]. Therapeutic communities are programs in which the patients remain at the treatment facility for 6 to 12 months. Id. There are also many recovery support groups. A widely recognized recovery support group is Alcoholics Anonymous. See A Brief Guide to Alcoholics Anonymous, available at Alcoholics Anonymous, founded in 1940, is an organization that provides a community of men and women who share their experiences in order to work toward achieving and maintaining recovery from alcohol abuse and addiction. Id. The primary purpose of this group is to foster awareness and sobriety. Id. Members follow a 12-Step Recovery Program and attend meetings to explore the symptoms of alcoholism and recovery. Id. An offspring of Alcoholics Anonymous is Narcotics Anonymous which also utilizes a 12-Step Recovery Program and group meetings to help drug addicts recover. See A substance abuse problem is a treatable condition. In order to be successful, treatment must be tailored to the individual s specific needs and may 4 incorporate elements of many different programs including counseling, psychotherapy, recovery support groups, and/or family therapy. See Treatment Methods, supra. According to the Principles of Treatment promulgated by the National Institute on Drug Abuse, there is no single treatment that is effective for everyone. Treatment must address all of the needs of the individual, not just the substance abuse issue, and treatment must be on-going in order to be effective. Just like a manageable chronic disease or disorder, the client with a substance abuse problem must be willing, in the context of a divorce action, to take responsibility and commit to significant behavioral changes to demonstrate a credible effort to treat the substance abuse or addiction problem. IV. TEMPORARY ORDERS A temporary orders hearing provides the framework for how the parties will live until the time the divorce is granted or a final resolution is determined. While a suit for divorce is pending, the court may render appropriate orders for the preservation of the property and protection of the parties as deemed necessary and equitable. Tex. Fam. Code 6.502, (Vernon 2005). The temporary orders hearing is often the first opportunity to present the theme of your case to the judge. When developing the theme of your case pay special attention to the terms you want to use to describe the substance abuse issue to the court. If you are representing the party with the substance abuse problem, you may want to refer to the substance abuse problem as a disorder, and you probably want to refer to your client as an individual with a substance abuse disorder. Conversely, if you are representing the client opposing the party with the substance abuse problem, you may use the terms druggie or addict or user when referring to the opposing party. Be careful to consider your audience also. Many people are affected, either directly or indirectly, by substance abuse issues and your judge could be one of these people. All of these factors should be considered as you begin to develop the theme of your case. A. Representing the Client with the Substance Abuse Problem Before the temporary orders hearing, work with your client to clearly define the relief sought. Set realistic expectations for your client, especially if you are representing a client with a substance abuse problem. If you and your client recognize that he is not a likely candidate for primary conservatorship at this point in the litigation because of the past or on-going effects of his abuse or addiction problem, consider requests you can make to help your client achieve parity, including:

13 Request the preservation of joint decisionmaking rights and duties. Ask for extra time, over and above a Standard Possession Order. Obtain orders that require the primary parent to keep the other parent in the loop as to school events, sports schedules, and appointments. Require the other parent to include your client as a contact on any information sheets regarding the child, not simply the school or daycare emergency contact card. Consider asking the court to appoint an amicus attorney to represent the interests of the child if you believe that the child wants to have more contact with your client than the other parent will agree to provide. Tex. Fam. Code (Vernon 2005). The amicus attorney may be more responsive to the evidence that the parent with the substance abuse problem is seeking treatment and making significant changes in their behavior, lifestyle, and more specifically, in their interactions with the child. If your client feels strongly that the child s wishes should be presented to the judge, consider filing a motion for the judge to confer with the child. Pursuant to Section (b) of the Texas Family Code, in a nonjury trial, the court may interview the child in chambers to determine the child s wishes as to conservatorship. When the issue of managing conservatorship is contested, on the application of a party, the court shall interview a child 12 years of age or older and may interview a child under 12 years of age. Once you have determined that substance abuse is an issue in the case, meet it head on. This is especially important if your client is the petitioner in the case. All significant conduct is likely to be presented to the court, including issues of substance abuse, alcohol dependency, instability, lack of routine, leaving the children unattended, or criminal activity. Diffuse the impact and stigma associated with substance abuse by addressing the issue through your client. Do not allow the judge to first hear about these issues from the opposing party. If your client has already begun seeking treatment by attending a treatment facility or recovery support group, the theme of your case could be making mistakes and taking responsibility for past actions. This theme can be developed through the testimony of witnesses at the temporary orders hearing. Due to the stigma attached to substance abuse, many individuals have been successful in hiding both their problem as 5 well as recovery advances from family, friends, and neighbors. It is important for you to know who is available to support your client s theme of the case and who might be available for a temporary orders hearing. Use expert witnesses to support your client s efforts to seek treatment for his substance abuse problem. These witnesses can include the psychologist who conducted a full psychological evaluation of your client, a mental health expert involved in a treatment program the client is attending, or leaders of other recovery support programs in which your client is participating. Encourage your client to maintain contact with all of these people, both lay witnesses and expert witnesses, even after the temporary orders hearing is completed so that these witnesses are readily available for the final trial. Consider using a subpoena for every witness even friendly witnesses so that you will have recourse if a witness fails to show. Finally, do not wait to talk to witnesses until the night before the hearing and do not rely on your client s summary of what a witness will say. Each witness must support the theme that your client is committed to treating his substance abuse problem and to making fundamental changes in order to establish long-term stability. It is not enough for the witness to simply pay lip service to that message. They need to be able to testify as to what they have seen that supports their observations. B. Representing the Client Opposing the Individual with a Substance Abuse Problem If you are representing the client opposing the individual with the substance abuse problem, be sure that you understand your own client s role in enabling or addressing the substance issue during the marriage. Also consider special relief that you might want to seek at the temporary orders hearing. Requests for relief on a temporary order basis when substance abuse is an issue may include the following: 1. Motion for Psychological Testing/Appointing a Counselor or Psychiatrist Ask the court to order psychological testing of the parties and the parties children and to appoint a counselor or psychiatrist to evaluate the parties. If the party with the substance abuse issue has not admitted he has a problem up to this point, the results of these court-ordered evaluations may force the issue and could even provide additional evidence to support a modification of temporary orders in favor of your client. Some courts have sample orders available in the courtroom that order substance abuse evaluations. Presenting the court with an order modeled after one that the judge is familiar with using is always a good

14 idea. A sample order used in the Harris County court system is attached to this article as Appendix C. When requesting this type of relief, also consider which party should be responsible for the costs of the evaluation and in what amount. 2. Temporary Injunctions Standard mutual temporary injunctions for the preservation of property and protection of the parties and children are usually granted at the temporary orders hearing. The court has the authority to impose injunctions pursuant to Texas Family Code Sections and In addition to the standard temporary injunctions consider other injunctions, mutual or not, that are tailored to the substance abuse issues in the case. Temporary injunctions you might request when substance abuse is an issue in the case include: Restricting the consumption or ingestion of any alcohol, narcotic, drug, or other mindaltering chemical, except as may be prescribed by a physician, while in the presence of the child Prohibiting a party from being intoxicated while in the presence of the child Restricting the ingestion of any alcoholic beverage, drug, narcotic or other intoxicant while in the presence of the child Prohibiting a party from assuming or continuing parental responsibility over the child while under the influence of alcohol, intoxicating drugs or other mind-altering or intoxicating chemicals of any kind, except as may be prescribed by a physician Prohibiting a party from placing or allowing the child to be in a bar, club, tavern or other establishment, the primary purpose of which is to sell alcoholic beverages to customers for on-premises consumption Except in a restaurant, public facility or at a public event outside the control of the party, prohibiting a party from placing or allowing the child to be placed in an environment or with others who are intoxicated or who take or ingest any alcoholic beverage, drug, narcotic or other intoxicant in the presence of the child Prohibiting a party from operating a motor vehicle with the child as a passenger while under the influence of alcohol, drugs, narcotics or other non-prescribed, mindaltering chemicals or allowing some other party to operate a motor vehicle with the child as a passenger if such person is under the influence of alcohol, drugs, narcotics or 6 other non-prescribed, mind-altering chemicals Prohibiting a party from expending any funds or disposing of any asset or increase of any liability, whether separate or community, on alcohol, drug or non-prescriptive narcotic Prohibiting illegal drug use Restricting ability to operate a motor vehicle with child in the car unless a Smart Start-type device is installed in the car 3. Random Drug/Alcohol Testing Present to the court the specific behaviors justifying the need for a request for random drug or alcohol testing. Provide the court with information on appropriate methods for such testing, such as testing facilities in the area or near the party s residence. This information can be prepared in a table format and attached directly to the order. That way the court does not have to spend any additional time locating proper treatment facilities. In the case of a party with documented drug and alcohol abuse problems, it is a good idea to request random testing. A court may allow for this random testing, through good cause shown, to be ordered by the appointed Amicus Attorney, thereby obviating the need for additional hearings for subsequent testing. There are several different types of tests available to detect substance use including analyzing blood samples, hair samples, breathalyzer results, and urine analysis. The latest technique for monitoring the use of alcohol in the system is the Ethyl Glucuronide (EtG) Test. Ethyl glucuronide is a metabolite of alcohol, and the presence of EtG in urine is a definitive indicator of alcohol ingestion. See Redwood Toxicology Laboratory, Ethyl Glucuronide Alcohol Testing, Frequently Asked Questions, available at www. redwoodtoxicology.com. Alcohol is usually shortlived in urine and this allows individuals with alcohol abuse and addiction problems the possibility of cheating between tests which may contribute to relapse. Gregory Skipper, M.D., Ethyl Glucuronide: New Urine Drug Test in the USA to Monitor and Treat Alcohol Use, available at However, EtG in urine stays positive for a longer period of time, typically 3 to 5 days. Id. This test is already being used to detect alcohol use for professionals such as physicians and pilots. 4. Request HIPAA Releases As the party opposing the individual with the substance abuse problem, it is important to have knowledge of what treatment the other party is receiving. The Health Insurance Portability and Accountability Act (HIPAA) and other statutes are relevant to the disclosure of personal health

15 information, particularly information of drug and alcohol treatment. Nothing can put the brakes on a case like an assertion of privacy and privilege with respect to the disclosure of medical conditions or mental health and substance abuse treatment information. Request releases of this information from the opposing side early. The battle to get the documents can be a long and expensive one, and it is best to know early on if privacy and privilege will be asserted. Pursuant to title 42 of the Code of Federal Regulations section (e), within HIPAA, there are two different ways to retrieve mental health records while remaining in compliance with the act. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding in response to the following procedures: (1) A court order, provided the entity discloses only the protected health information expressly authorized by the order; or (2) A subpoena, discovery request, or other lawful process, if: (A) The entity receives satisfactory assurance that the individual entitled to protection has been given notice of the request or a good faith effort has been made to give such notice; Specifically, the notice requirements are as follows: OR (i) The requesting party has made a good faith effort to provide notice; (ii) The notice includes enough detail about the litigation so that the individual can raise an objection to the request; and (iii) The time to raise any objections has elapsed; and (a) No objections were filed; or (b) All objections filed have been resolved by the court. (B) The entity receives satisfactory assurance from the party seeking information that reasonable efforts have been made to secure a qualified protective order. Specifically, the entity must receive a written statement and accompanying documentation demonstrating that: (i) The parties have agreed to a protective order and presented it to the court; or 7 (ii) The party seeking the protected heath information has requested a qualified protective order from the court. Note: A qualified protective order means an order of the court or a stipulation by the parties to the litigation that: (A) Prohibits the parties from using or disclosing the protected information for any purpose other than the litigation; and (B) Requires the return or destruction of the records and any copies of them at the end of the litigation. Note: An entity may still make a disclosure without satisfactory assurance of notice or the obtaining of a protective order if reasonable efforts have been made to provide notice or to obtain the qualified protective order. Consider asking the court to order the opposing party to execute HIPAA releases at the temporary orders hearing so that you and your client can expedite the process of obtaining access to the treatment records of the opposing party. A sample Authorization Form for Release of Protected Health Information is attached to this article as Appendix D. V. PREPARING THE CASE FOR TRIAL A. Living with Temporary Orders After the temporary orders hearing, you will have a clear idea of the court s rulings, but it is important to make sure that your client fully understands all of the court s rulings also. It is imperative that the client with a substance abuse problem follow all of the recommendations and orders contained in the Temporary Order because this client already has the challenge overcoming the stigma associated with the substance abuse problem. These orders and recommendations may include: Attending parenting classes Attending counseling Participating in a custody or psychological evaluation Undergoing drug testing Attending an anger management program Attending Alcoholics Anonymous, Narcotics Anonymous, or other recovery support groups Undergoing alcohol or drug evaluation Attending alcohol counseling Executing medical and treatment releases You do not want your client to be looked upon unfavorably by the court because a requirement was

16 not satisfied. Order a certified copy of the Temporary Order so that your client can have a copy with him. Consider calendaring reminders, sending letters to your client, and following up with phone calls to the client to discuss your client s progress on meeting these obligations. In addition to following the terms and conditions of the temporary orders, discuss with your client the different issues that may arise while the case is proceeding. To the extent the child is not placed in danger or an emotionally abusive situation, the client should be aware of the importance of encouraging the child s positive relationship with the other parent no matter what. If your client has been given supervised visitation due to his past or on-going behavior resulting from his substance abuse problems, explain to him the importance of exercising every moment of possession and access granted even if the periods of possession are uncomfortable. Once the client has established consistent periods of possession, the court may consider a motion to modify the temporary orders requesting additional or unsupervised periods of visitation. Obviously, the client with the substance abuse issue must address other issues identified by a mental health professional such as anger issues, concerns about alcohol, and concerns about mental disorders. Advise your client to continue seeking treatment after the initial temporary orders phase of the case is completed. In addition to treatment programs and recovery support groups, the client with a substance abuse problem could complete parenting classes above and beyond the minimum required by the court. It is also important for the client to cooperate with any court-appointed professionals, such as mental health evaluators or the Amicus Attorney. Your client should be prepared to cooperate fully with the courtappointed Amicus Attorney or Ad Litem. The courtappointed representative for the child has a highly influential role in the case. Be prepared to work with this person as amicably as possible. Some ideas about making this relationship a positive one include: Making your client available to the Amicus or Ad Litem. Be proactive in setting up the initial appointment with this person as soon as appointed by the court. Instructing your client as to what information can and cannot be shared with the Amicus or Ad Litem. Providing contact information for your client and relevant witnesses. Responding to discovery. The Amicus or Ad Litem may send out informal discovery in the form of a questionnaire. Make sure your client takes this task seriously, and review any response before it is forwarded. Providing executed medical HIPAA releases upon request. B. Discovery When representing the client who has a substance abuse problem be sure to answer and supplement discovery responses carefully so you can use all expert witnesses, Certificates of Completion, and witnesses necessary to support the theme of your case at trial. Follow up with your client to make sure he continues to update this information any time his treatment changes or a new doctor, psychiatrist, counselor, or therapist becomes part of his treatment program. Make sure you request from your client a list of mental and medical health care providers and get signed authorizations for access to their records. When preparing the case against a party who has a substance abuse problem, be creative with your discovery requests. Do not simply rely on the standard requests in the Practice Manual. Ask about mental health providers and follow up on obtaining medical health releases. If these releases have not been received after reasonable notice, consider filing a Motion to Compel Execution. Create discovery requests asking about receipts from liquor stores or grocery stores in the area. Consider subpoenaing room service and hotel bill records from any trips that the opposing party takes during the pendency of the case to determine whether the party ordered alcohol or consumed alcoholic beverages from the mini-bar in the hotel room. Many grocery stores, such as Kroger and Randall s, issue cards to shoppers that track purchases for the purpose of tailoring advertisements and coupons. You might want to subpoena these records to look for evidence that the party is purchasing alcoholic beverages on a regular basis. C. Private Investigators It is not uncommon to hire a private investigator to gather evidence to support your theme of the case. Once you have made the determination to hire a private investigator, research the investigator s licensing credentials and reputation in case you decide to designate him as an expert witness. You may decide to have your private investigator follow the party with the substance abuse problem. Video-tapes prepared as a result of that surveillance can be powerful trial exhibits particularly if they show the party consuming a prohibited substance. The private investigator may also testify at trial about what he saw and the behaviors he observed. A private investigator may also be employed to toss trash at the residence of the party with the substance abuse or addiction problem to search for evidence of substance 8

17 use including drug paraphernalia or empty alcohol bottles. Note that there are privacy issues that may arise when a private investigator has videotaped a party or performed a trash search. Make sure the investigator you hire has a clear understanding of the parameters of his investigation in order to avoid invasion of privacy tort claims. Along the same lines, the attorney must ensure that the investigator has a clear understanding of the relevant state and federal statutes on the issues of illegal wire tapping. VI. FINAL TRIAL Final trial is the culmination of all of your efforts and your client s efforts to gather the information necessary to finally resolve all outstanding issues. This is usually your final opportunity to present the theme of your case to the trier of fact. A. Preparing the Client Outline with your client all the central issues in the case with your focus on the theme of the case. This theme should have carried through from your initial evaluations and the presentation of the case at the temporary orders hearing. Consider creating a time-line of events to keep you and your client focused and to eliminate redundancy in the presentation of testimony and evidence. Hopefully you have managed to get control over your client weeks before trial. Educate the client about the realities of trial, including an overview of the trial process explaining everything from the role of court personnel, the fact that the trial proceedings are open to the public, appropriate dress, appropriate demeanor, as well as the basic summary of the order of trial proceedings. A client who knows what to expect in the courtroom will not be as subject to stress and should be better able to focus on his own testimony and the analysis of the testimony of others. Prepare your client for questions about strengths and weaknesses, both your client s and those of your client s spouse. This is equally important whether you are representing the client who has the substance abuse problem or the client opposing the individual with the substance abuse problem. The client must be able to articulate and emphasize strengths, but also to acknowledge personal weaknesses. Your client also must be prepared to answer the same questions for the opposing party and to be able to emphasize parenting weaknesses while also crediting that party s strengths as a parent. Except in extraordinary circumstances, for your client to answer none when asked about the positive attributes of his or her spouse may seriously undermine your client s credibility with the judge or jury. Further this type of answer may cast doubt on your client s ability to co-parent and support the child s relationship with the other parent. 9 B. Preparing Witnesses Preparation of witness testimony, including preparation of your client and all other witnesses, may actually dilute bad facts or tip the scales when facts are close. You can rarely spend too much time making sure your client and witnesses are confident and ready to testify. 1. Lay Witnesses During the weeks before trial, consider interviewing each witness in person and going through their testimony. Instruct the witnesses as to proper attire, courtroom demeanor, appropriate responses on cross examination and how to handle objections. Instruct your witnesses as to the Rule explaining the consequences of violating the rule. It is important to understand the background and motivations of each witness presented, including your own witnesses and the witnesses presented by the opposing party. This can be especially important in a case involving a substance abuse issue. Be aware of whether the witness you are examining or cross examining has any substance abuse history in their own personal life because this can greatly bias that witness testimony. For example, if you are representing the client opposing the party with the substance abuse problem and the opposing side is going to call that client s parent as a witness, determine if the parent of the client also has a substance abuse problem. When you question the parent about specific actions of their child, they may not see any problem with the actions because of the denial component of their own substance abuse problem. Consider the following exchange: Question: Ms. Smith, are you aware that your son drinks before taking his children to their afterschool activities? Answer: That may have happened on occasion, but I don t see a problem with it. Question: You don t see any problems that could arise due to drinking before operating a motor vehicle? Answer: Not really, no. These types of responses may affect the credibility of the witness with the trier of fact. A witness who has struggled with their own personal substance abuse problem may be more sympathetic or less sympathetic toward the individual with the substance abuse problem. Therefore, consider spending time fully exploring the biases and backgrounds of the witnesses that you call to present your theme of the case and the witnesses presented by the opposing party.

18 Prepare the private investigator for the presentation of his testimony at the hearing or trial. Review the predicates that must be established before the evidence he has obtained can be admitted by the court. Most commonly, the proffer of evidence obtained by the private investigator are videotapes and photographs. He may also have generated a report. Be ready for a hearsay within hearsay challenge as to the private investigator s report and/or file. Finally, call the witness the day before trial. Ask if any new information has come up since your last meeting, and confirm that they will be there, on time and in the right place, pursuant to their subpoena. 2. Expert Witnesses Go back through your expert witnesses, make sure a resume or CV has been provided for each expert, and carefully review their subject matter and mental impressions as set out in your discovery responses. Many times, an expert s testimony will evolve during the case, so while he may initially have been identified as testifying on a particular subject matter, his testimony may have expanded to include other areas. In preparing your expert to testify, it is imperative that you work with him one-on-one. Tell your expert you want the truth. Read your expert s report well in advance of trial. If there are aspects of the report that you do not understand, make your expert explain them to you. This is especially important when dealing with the medical tests and diagnostic evidence which may be more complicated than even the most sophisticated practitioners fully understand. Begin working with your expert several weeks prior to trial. Work with your expert in person. Have your expert walk you through what he believes are the most salient points of their report and the strongest factors for supporting the positions they have taken. You have to understand the terminology if you do not follow the expert witness explanations, chances are neither will the trier of fact. Just because you call an expert to the stand does not mean you must spend hours on direct. Sometimes expert testimony can be very succinct and to the point and should be. Do not over examine, giving opposing counsel time to think and prepare a cross examination for which they may otherwise be illprepared. When using a psychologist and/or psychiatrist as an expert witness, it is important to select a psychologist or psychiatrist who will appeal to the court and fit the circumstances in which you are trying your case, as well as compliment the client and the children. Does this expert have a specialty area, such as abuse and addiction? What percentage of the expert s practice is devoted to that area? The more familiarity the expert has with addiction and those 10 types of issues, the more weight his testimony will carry. Remember also that cross-examination of an expert can be difficult. Quit while you are ahead. Hit the few points that are salient and move on. Use your own expert to develop a critique of the opposing expert s report. Your expert is the best person to assist you in developing their direct examination, anticipating the cross-examination that they will be facing and preparing you to cross-exam the opposing expert. i. Daubert challenge In any case involving the use of experts, you must be prepared to challenge or to survive a challenge to an expert s qualifications and ability to testify, including a challenge to the lab which conducted the testing of the suspected abuse. If presenting an expert witness, first request from your opposing counsel an agreement and stipulation to your expert s qualifications, and reduce any agreement to writing. This step will save a lot of time and is especially appropriate in the case of a court-appointed expert. If your opposing counsel refuses your request for a stipulation, be prepared for a Daubert challenge. Brief the court on the basics of Daubert and the specifics of your expert and case, and prepare your expert for the challenge. (See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, (1993); 113 S.Ct. 2786, ; E.I. DuPont de Nemours v. Robinson, 932 S.W.2d 549 (Tex. 1995), and their progeny.) C. Preparing Exhibits Demonstrative aids can be invaluable in conveying large amounts of information to the fact finder and in presenting a persuasive case. The most common type of demonstrative aids include photographs, flip charts, courtroom blackboards and video and tape recordings. Charts can be extremely effective in presenting a case involving substance abuse issues. For example, if you are representing the client with the substance abuse problem, consider using a chart to visualize all of the treatment and milestones achieved by your client in overcoming his addiction. Introduce Certificates of Completion and the testimony of expert and lay witnesses to discuss the achievements of your client and include a point from each witness testimony on the chart. At the end of your presentation, title the chart and mark it as a demonstrative exhibit so that the opposing party cannot mark on it during their presentation of the case. Alternatively, if you represent the client who is opposing an individual with a substance abuse problem, consider using a chart to create a timeline. If the opposing party has a pattern of seeking treatment for limited periods and then

19 relapsing, this could be an effective tool for illustrating the cycle of addiction for the trier of fact. Photographs can be used effectively to show the court a family, a child, a relationship, a history of parenting. They can make real the people whose future will be decided by the trier of fact. Consider selecting a few photographs to blow up. Also, in admitting the photographs, do not simply lay a basic predicate, offer the photographs, and then move on to the next issue. Let your client walk the court through the photos and, briefly, the story behind each one. Medical records and specific portions of medical records can be used as exhibits. These records can be particularly effective in a case involving substance abuse because the expert witness can refer to the records when discussing characteristics of the substance abuse problem or the party s treatment. A Day-in-the-Life video requires virtually the same predicate as photographs and can quickly and effectively counter an opposing party s claims that a child is uncomfortable or unfamiliar with the other parent. Video-tapes gathered by the private investigator can also be presented to show the trier of fact the actions of the opposing party. Transparencies are another cost-effective demonstrative aid that can be used to emphasize portions of exhibits already admitted into evidence. VII. POST-DIVORCE CONSIDERATIONS Although this article has focused primarily on issues that arise during the pendency of the divorce action, post-divorce issues should also be considered since an individual with a substance abuse problem faces the possibility of a relapse. Obviously, after the entry of a Final Decree of Divorce, the parties to the divorce are bound by the terms of the order. The party with the substance abuse problem may neglect courtordered obligations, such as paying child support, if there is a relapse of the substance abuse problem. Non-custodial parents in violation of court orders are prime candidates for drug courts. In 2001, House Bill 1287 required Texas counties with populations over 550,000 to apply for federal and other funding to create drug courts. Texas Department of Criminal Justice, Texas Drug Courts, available at An example of a drug court established pursuant to this mandate is the STAR Family Intervention Court in Harris County. Participants eligible for this program must: Cannot have an acute mental health disorder that would preclude them from participating in substance abuse treatment Participants are assessed to determine the treatment needed and must attend court hearings on a schedule commensurate with the length of time in the program and progress toward treatment goals. Random drug testing, detoxification, residential treatment, outpatient treatment, support group attendance, and education may all be components of the treatment provided. The length of time in the program varies from months. Individuals who successfully complete a drug court program have lower rates of future relapse. See id. VIII.CONCLUSION There are many challenges that arise when preparing a case involving substance abuse issues. Hopefully, this paper has provided you with some ideas about how to effectively manage the substance abuse issue in divorce. Family law lawyers faced with this type of case have an opportunity to impact the life of the client affected by substance abuse issues by developing a strong theme of the case, utilizing community resources, finding creative ways to prepare the case for trial, working with expert witnesses, and presenting a well-prepared case to the trier of fact. Be willing to participate in the program Have a diagnosable substance abuse problem, as defined by the DSM-IV Be a non-violent offender 11

20 APPENDIX A DO YOU THINK YOU MIGHT HAVE A PROBLEM WITH ALCOHOL OR OTHER DRUGS? 1. Do you use alcohol or other drugs to build self confidence? 2. Do you ever drink or get high immediately after you have a problem at home, school or work? 3. Have you ever missed work or school due to alcohol or other drugs? 4. Does it bother you if someone says that you use too much alcohol or other drugs? 5. Have you started hanging out with a heavy drinking or drug using crowd? 6. Are alcohol and other drugs affecting your reputation? 7. Do you feel guilty or bummed out after using alcohol or other drugs? 8. How often do you have a drink containing alcohol? 9. How often during the last year have you found that you were not able to stop drinking once you had started? 10. How often during the last year have you failed to do what was normally expected from you because of drinking? 11. Do you borrow money or do without things to buy alcohol or other drugs? 12. Do you drink or use drugs until your supply is all gone? 13. Has there ever been someone in your family with a drinking or other drug problem? 14. Do you feel a sense of power when you use alcohol or other drugs? 15. Have you ever been arrested or hospitalized due to alcohol or use of illicit drugs? See The Council on Alcohol and Drugs Houston, Questionnaire, at See also Substance Abuse and Mental Health Services Administration, at 12

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