Tessa,

I’m going to be candid: **do not file tomorrow for immediate equal parenting time.** A request like that is not supported by the facts or the governing law right now, and it could set you back. That does not mean you are stuck. It means the most credible request you can make is for a **structured, gradual step-up plan with objective safety conditions**—not equal time today.

Here is my full advice.

## 1. Material change and best interests

A court can modify a custody order only on a **material change in circumstances** and only if the modification serves Eli’s best interests.

There is a material change here—but it cuts both ways. Since the original order, you completed 14 months of treatment, stayed stable, produced negative tests, and had unsupervised visits without any incident. That is a real change. But the relapse, the impaired-driving charge, and the 10-day delay in telling Daniel are also a material change, and they point toward caution.

The best-interest factors that support **eventual expansion** include:

- Your 14-month period of treatment and sobriety before the relapse;
- stable housing and employment;
- no incident while Eli was in your care;
- a strong bond between you and Eli, confirmed by Eli’s therapist;
- Eli’s stated desire for more time with you;
- your immediate reentry into intensive outpatient treatment, meetings, monitoring, and surrendering your keys;
- Daniel’s willingness to consider a written step-up after 90 more days of negative tests.

But those factors do not support immediate equal custody. Against immediate equal time are:

- the relapse itself;
- the decision to drive after drinking;
- striking a parked car and the resulting DUI charge;
- the 10-day nondisclosure;
- the minimization in saying the relapse “doesn’t count” because Eli was not present;
- only five weeks of negative tests;
- your counselor saying longer observation is needed;
- Eli’s therapist recommending gradual expansion, not a sudden change;
- Eli’s anxiety when adults discuss drinking.

So the legal conclusion is: **a step-up is realistically supported; immediate equal custody is not.**

## 2. The relapse, the DUI, and the 10-day nondisclosure

I need to be blunt with you about this. The relapse is a material safety fact. The DUI makes it more serious because it shows impaired judgment and risk of harm, not just a private mistake. You were charged with impaired driving after striking a parked car. A court will consider that conduct regardless of whether Eli was in the car.

The 10-day delay in telling Daniel is also very damaging. Daniel learned from a mutual friend, not from you. That looks like concealment, and the rules in this area say concealment weighs heavily against credibility and cooperative parenting. You need to own that, explain it, and show what you will do differently. You cannot spin it as “Daniel overreacted.”

Your current treatment response is real and positive. Reentering IOP, attending meetings, using an alcohol-monitoring device, giving your sister your car keys, and producing five weeks of negative tests all help. But five weeks is short, and your own counselor says longer observation is needed. We cannot characterize five weeks as proof of long-term stability. It is only **early evidence** of a good-faith recovery.

## 3. “Eli was not present” does not make it “not count”

Legally, Eli’s absence is important but not decisive. It means there was no direct exposure, and it supports a more moderate response than ending your parenting time. I would argue that point: Eli was not in the car; nothing happened while he was with you; Daniel was caring for him at the time.

But the argument cannot be “therefore the relapse doesn’t count.” The court will still consider the risk to Eli. Impaired driving demonstrates that you made a dangerous decision while under the influence. If Eli had been in the car, the result could have been catastrophic. A judge will not ignore that simply because he was not there. Say instead: “Eli was not present, but my conduct was still dangerous, and I understand why it caused alarm.” That is credible. “It doesn’t count” is not.

## 4. Eli’s preference and the therapist’s recommendation

Eli’s preference is relevant. He is 11, and a court can consider a child’s mature preference. But the court should not put Eli in the position of deciding between his parents, and neither should you. Do not ask Eli to advocate for you, write letters, or tell Daniel what he wants. That can backfire and hurt Eli.

The therapist’s report is actually helpful to you, but only if you follow it. The therapist says Eli has a strong, healthy bond with you and wants more time, but becomes anxious when adults discuss drinking. The therapist recommends gradual expansion with reliable sobriety safeguards—not abrupt equal time.

If you ask for immediate equal time, you are asking the court to reject the professional recommendation. That makes your request look less about Eli and more about proving a point. Instead, the phased plan I describe below **is** the therapist’s recommendation.

## 5. Emergency relief and immediate equal custody are not supportable

There is no basis for emergency relief. Emergency relief is for present, specific danger. Right now Eli is safe in Daniel’s primary care, and visits are supervised. The current safeguards are working. Your desire for more time, however important, is not an emergency.

Immediate equal custody is also not supportable. A court should not order immediate equal time merely to “reward” parental progress, especially after a recent relapse, a DUI, a nondisclosure, and a therapist recommendation for a gradual approach. Immediate equal time would be a sudden change for Eli and would place you in an unsupervised driving and caregiving role far too soon. Even without the relapse, a jump from alternate unsupervised weekends to equal time would have been a major change. With the relapse, it is not viable.

## 6. The phased plan I would propose

The most credible approach is to propose a written, objective step-up plan—ideally by agreement with Daniel. It should include the following terms:

### Phase 1: Now through the next 90 days

- Continue current supervised visits, and if possible expand the number or length of supervised visits to preserve your bond with Eli.
- Continue intensive outpatient treatment and at least four recovery meetings per week.
- Continue the alcohol-monitoring device.
- Submit to random, observed alcohol testing, with missed or diluted tests treated as positive.
- Sign releases so your treatment provider and testing company can report directly to the court and to Daniel’s attorney.
- Do not drive Eli during this phase.
- Have your sister or another approved sober adult transport you to visits.
- Do not use alcohol at all.
- Immediately disclose any relapse or alcohol-related police contact to Daniel and to me—within 24 hours, not 10 days.
- Do not discuss this case or the relapse with Eli.

### Phase 2: After 90 days of negative tests and compliance

- Continue random testing and monitoring.
- Begin unsupervised daytime visits, for example one weekend day and one midweek dinner.
- Still no overnights.
- Continue using a sober adult for transportation; do not drive Eli until an addictions professional recommends it.
- Obtain input from Eli’s therapist before this step occurs; if the therapist raises concerns, delay the step.

### Phase 3: After another 90 days of continued compliance

- Add one overnight per alternate weekend, then gradually move toward a schedule such as Friday after school to Sunday evening on alternate weekends, plus one midweek visit.
- Continue monitoring and random testing.
- Consider allowing you to drive Eli only after a substance-abuse professional clears you and after review of your compliance.

### Phase 4: After 9–12 months of sustained recovery

- If you have maintained sobriety, complied with treatment, produced consistent negative tests, and have the support of professionals, then ask the court to consider equal or near-equal parenting time.
- Even then, this should not be automatic. It should be based on the record at that time.

### Safety reversion

The plan should also include a clear reversion clause: if you miss, dilute, or fail a test; if there is a new alcohol-related incident; or if you fail to disclose a lapse, the schedule returns to the prior, safer phase—or to supervised visits—until you complete further treatment and the court reviews the situation.

This kind of plan protects Eli and also protects you from Daniel unilaterally changing things later. It shows the court that you understand the seriousness of the relapse and are not asking for more than is safe.

## 7. Should you file now, negotiate, or wait?

**Do not file the motion you described tomorrow.**

Here is the sequence I recommend:

1. **Negotiate now.** Ask me to send Daniel’s attorney a written proposed step-up plan. Daniel has already said he will consider a written step-up after 90 more days of negative tests. That gives us a place to start. If he agrees, we submit it to the court as a consent order. That would give you a clear path and enforceable schedule.

2. **If Daniel refuses, do not litigate immediately.** Wait until you have the 90 days of negative tests, treatment compliance, counselor support, and no further incidents. Then, if necessary, file a modification asking for the phased plan—not immediate equal time.

3. **Use this waiting period actively.** Document every meeting, every test, every visit. Keep a parenting log. Follow every recommendation of your treatment team. Do not give Daniel or the court any new reason to worry.

4. **If there is already a hearing scheduled,** we should use that hearing to either enter a phased agreement or ask the court for a continuation until your treatment record is stronger. We should not go into that hearing demanding equal time.

The fastest way to eventually get equal time is to stop demanding it now. A judge who sees you asking for more than the evidence supports will trust you less. A judge who sees you asking for a safe, gradual plan will trust you more.

## 8. The candid statement you must be ready to make

If we go to court—or if we negotiate seriously—you will need to make a statement substantially like this:

> “On the date of the wedding, I drank alcohol, drove, and struck a parked car. I was charged with impaired driving. Eli was not in the car, but that does not make my conduct acceptable. I should not have been driving at all. I also did not tell Daniel for ten days, and that was wrong. He should have been told immediately.
> 
> I have reentered intensive outpatient treatment, I attend recovery meetings four times a week, I use an alcohol-monitoring device, and I have given my car keys to my sister. I have had five weeks of negative tests. I know that five weeks is not long-term proof of sobriety.
> 
> I am not asking the court to ignore the relapse or to give me equal time right now. I am asking for a gradual step-up plan with testing, treatment, transportation limits, and court review. I understand that any future lapse must be disclosed immediately, and I am willing to accept consequences if I fail to follow the plan.”

If you are not willing to make that kind of statement, I cannot ask the court to pretend the relapse did not happen. I also cannot present five weeks of negative tests as proof of long-term stability. Those choices would hurt you and violate the ethical rules governing this representation.

## Bottom line

You have a real chance to rebuild more parenting time, but only through a **phased, safety-first plan**. Immediate equal custody is not supported by the law, the facts, or the professional evidence. Negotiate a step-up now; if Daniel refuses, wait and build the record, then file for a structured modification. This is the course most likely to improve your time with Eli safely—and ultimately to get you where you want to be.