In dealing with Texas custody issues, courts must focus on the children’s best interest. Courts sometimes conclude that the best interest of the children requires certain restrictions on the parents when the children are in their care.  A father recently challenged a provision in the divorce decree prohibiting the parents from drinking at certain times.

Divorce Decree Prohibits Consumption of Alcohol

The parents’ divorce decree prohibited both parents from consuming alcohol while they had possession of the children or within 12 hours before their scheduled possession.  The father ultimately appealed this provision, arguing it was an abuse of the trial court’s discretion.

According to the appeals court’s opinion, there was evidence of the father’s regular excessive drinking.


The appeals court noted that the children’s best interests are the primary concern in issues involving possession and conservatorship.  Tex. Fam. Code Ann. § 153.002. Restrictions or limitations on the parent’s right to possession and access are limited to what is required to protect the children’s best interest. Tex. Fam. Code § 153.193.

The father framed the provision as an injunction and argued the court could only impose such a restriction if the traditional elements for a permanent injunction are met.  The appeals court noted, however, that previous cases from the Austin Court of Appeals, from which this appeal was transferred, focused on the child’s best interest in similar cases.  In the cases the appeals court considered, the Austin Court of appeals did not discuss or apply the traditional elements for a permanent injunction.

Appeals Court Finds “Ample Evidence” Supporting Injunction

The appeals court noted there was “ample evidence” in the record that would allow the trial court to reasonably conclude the father drank alcohol in the presence of the children and to excess.  There was evidence the father had operated motor vehicles after drinking or while intoxicated, brought the kids home with alcohol on his breath, averaged twelve to eighteen beers on Friday and Saturday nights, urinated on his daughter’s shoes on the floor, violated temporary orders prohibiting him from drinking when he had the children, and violating temporary orders requiring him to blow into an alcohol monitoring device.

The appeals court pointed out, however, there was little evidence that the father’s drinking had led to physical injury or harm to the children.  The mother testified she had been present to keep the children safe while the father was drinking.  The father stated he sometimes drank more because he knew the mother was there to take care of the children.  There was no evidence that the father would have another adult present to take care of the children if he drank while they were with him after the divorce.

The appeals court noted the father was not completely barred from drinking.  The provision only restricted consumption of alcohol when the children were in his possession or were scheduled to be in his possession within 12 hours.  The appeals court also pointed out that the restriction could be modified if there were a substantial and material change in circumstances.  Tex. Fam. Code Ann. § 156.101(a)(1).

Appeals Court Finds that Trial Court Could Preemptively Impose Injunction

The appeals court concluded that a trial court need not wait until a child has physically harmed to impose such a restriction.  The appeals court found the trial court “protect[ed] the children’s best interests in a nominally intrusive way.” There was no abuse of discretion.

The appeals court affirmed the trial court’s judgment.

In Matters of Custody, Ever Case is Unique – Call McClure Law Group to Assist with Yours Today

In this case, the court heard evidence of both the father’s overall drinking patterns and specific incidents, supporting restrictions on the parents’ drinking during and immediately before their possession of the children.  Under different facts, however, similar restrictions might not be required to protect the best interests of the children.  Custody matters are very fact specific.  If you have concerns about your spouse’s drinking or use of other substances, talk to a knowledgeable Texas custody attorney about your options.  Call McClure Law Group at 214.692.8200 to set up an appointment to discuss your case.