# Confidential Attorney–Client Memorandum **To:** Tessa Rowan **From:** Counsel **Re:** Strategy for expanding parenting time with Eli after the recent relapse --- ## 1. The headline You are asking me to file tomorrow for equal parenting time and to argue that the relapse "does not count" because Eli was not with you. I will not do that, and my reasons are practical as much as ethical: that filing is likely to lose, and it is likely to cost you the credibility that is your single most valuable asset in this case. A court that hears you say a DUI six weeks ago "does not count" will conclude you have not internalized the risk, and it will be slower to expand your time than it otherwise would have been. The good news is that you do not need a contested hearing to get more time. Daniel has already told you he will consider a written step-up after 90 additional days of negative tests. That is close to the best realistic outcome available to you right now, and it is available **by agreement**, without a judge, without cross-examination about the wedding, and without a transcript that follows you into every future review. My recommendation: **do not file an emergency or immediate-equal-time motion. Negotiate a written, objective, self-executing step-up plan now, and hold litigation in reserve as leverage and as a fallback if Daniel stalls past the 90 days.** --- ## 2. Material change and the best-interest factors that favor you You have a genuine material-change argument — but understand which direction the change cuts. **Changes favoring expansion (the 14-month record):** - Completed outpatient treatment; sustained meeting attendance - Stable housing and stable employment - A long series of negative random tests - Visits expanded by *agreement* from supervised to alternating unsupervised weekends - **No incident ever occurred while Eli was in your care** — your caregiving history with him is clean - A strong, healthy, therapist-documented bond - No allegation that you have interfered with Eli's relationship with Daniel **The change that cuts against you:** - A relapse six weeks ago involving impaired driving and a collision, plus ten days of nondisclosure Both are material. A court will not pretend the 14 months did not happen — that history is real, and it is why your realistic ceiling is a *step-up plan* rather than a return to square one. But a court also will not treat six weeks of recovery as erasing a six-week-old DUI. The current order (supervised contact) is not irrational; it is a conservative response to a fresh safety event. Your task is not to prove the relapse was meaningless. It is to prove the *safeguards* are now strong enough that increments of unsupervised time are safe, and to let time do the rest. --- ## 3. The relapse, the driving, and the ten days Let me be blunt about how each piece looks to a judge. **The drinking itself** is the least damaging element. Courts understand relapse as a feature of alcohol use disorder, not proof of bad character. Standing alone, a slip followed by immediate re-engagement in treatment often *helps* a parent's credibility. **The impaired driving and collision** are the serious part. This was not a private slip. You consumed alcohol, made a decision to drive, and struck property. That is externally verified, criminally charged conduct demonstrating impaired judgment about risk — and driving is exactly the activity that connects your drinking to physical danger to a child. Any argument that minimizes the driving will be read as minimizing the danger. Do not make it. **The ten-day nondisclosure is the element most likely to control the outcome.** Daniel learned from a mutual friend, not from you. Under the governing standards, concealment weighs directly against candor and cooperative parenting — and candor is the currency in which step-up plans are purchased. A court's central question in a phased plan is: *if she slips again, will we hear about it from her, or from someone else in ten days?* Right now the honest answer is unfavorable, and you can only change it by acknowledging it plainly and by building a disclosure obligation into the plan itself. **Your treatment response is genuinely strong** and I will present it forcefully: immediate re-entry into intensive outpatient, four meetings weekly, an alcohol-monitoring device, keys surrendered to your sister, five weeks of negative tests. That is a serious, structural response, not a cosmetic one. But your own counselor says longer observation is needed. I cannot — and will not — characterize five weeks of negative tests as proof of stable long-term sobriety. If I did, opposing counsel would put your counselor on the stand and dismantle it, and the collapse would be attributed to you. --- ## 4. "Eli wasn't there" This matters. It is not nothing. It means: - There is **no evidence of direct exposure or trauma** to Eli from the relapse - Your caregiving record with him remains unblemished - This is not a case involving driving with a child in the car, which would be a far graver posture So we will say clearly: *Eli was never placed in physical danger.* But the argument you want to make — that the relapse therefore "does not count" — is wrong on the law and wrong tactically. Best-interest analysis is forward-looking and asks about *risk*, not just realized harm. A parent who drinks to impairment and drives is demonstrating a decision pattern that, on a different Saturday, produces a child in the passenger seat. Absence of exposure limits the harm; it does not eliminate the risk. And when you frame it as "does not count," you signal that your safety analysis depends on luck. That single phrase could cost you months of parenting time. It must never be spoken in a pleading, a mediation, a deposition, or a hallway. Say instead: *"Eli was not with me, and I am grateful for that. It is also the reason I will never let it be a possibility again — which is why the keys are with my sister and the monitor is on my ankle."* --- ## 5. Eli's preference and his therapist Eli's wishes help you and confirm the bond. At eleven he is old enough for his views to carry real weight. But three cautions: 1. His preference is relevant, **not controlling**. 2. The therapist has told us Eli becomes **anxious when adults discuss drinking**. That is a warning aimed at both parents. Do not discuss the case, the charge, the monitor, or Daniel's position with Eli. Do not ask him to tell anyone what he wants. Do not let him sense that his answer determines the outcome. If a court concludes you recruited him, the preference evidence becomes a liability. 3. The therapist's actual recommendation — **gradual expansion with reliable sobriety safeguards, not an abrupt move to equal time** — is the most influential piece of professional evidence in this file, and it is not the recommendation you are asking me to advance. That therapist is, in effect, already endorsing the negotiated plan. Fighting for immediate equal time means fighting your own best expert. --- ## 6. Emergency relief and immediate equal custody **Emergency relief:** Unavailable, and not something you want. Emergency restriction requires a *present and specific* danger. There is none here — Daniel is following the order, facilitating visits, and cooperating. There is nothing for a court to enjoin on an emergency basis. (Nor should you accuse Daniel of misconduct for reinstating supervision after a DUI; attacking a parent for raising a legitimate safety concern weighs against you, and it is the fastest way to convert a cooperative co-parent into an adversary.) **Immediate equal parenting time:** Not supportable six weeks after a charged DUI, with a counselor asking for more observation and a child's therapist recommending gradual expansion. Separately, the law does not award equal time as a *reward for progress*; it awards parenting time that fits the child's safety and stability. Filing this motion invites a written order finding that you minimized impaired driving and concealed a relapse — findings that will be quoted back at you at every review for years. --- ## 7. The phased plan to propose Here is the framework I will draft. Every trigger is objective, so that neither parent gets to decide unilaterally whether you have earned the next step. **Phase 1 — now through Day 90 (from Daniel's proposed start date):** - Supervised Saturday visits (agreed supervisor named in writing) plus midweek dinner - Continuous transdermal alcohol monitoring, reports released to Daniel and to the court file - Random testing 2–3x weekly through a designated lab; results auto-released to Daniel - IOP attendance plus four recovery meetings weekly; monthly counselor letters confirming compliance - **No driving with Eli.** All transport by Daniel, your sister, or a rideshare with the fare receipt shared - Written obligation: **you disclose any positive test, missed test, new charge, or any drink within 24 hours**, directly to Daniel **Phase 2 — Days 91–180, contingent on a clean Phase 1:** - Restore alternating unsupervised weekends (Friday evening–Sunday evening) plus midweek dinner - Monitoring and testing continue at reduced frequency (weekly random) - Driving with Eli permitted **only** upon (a) resolution or favorable disposition of the criminal charge, (b) valid license and insurance, and (c) 90 continuous days monitored-negative **Phase 3 — Days 181–270, contingent on a clean Phase 2:** - Add a second midweek overnight; extend one weekend per month by a school holiday - Monthly testing; monitor removal by agreement or on counselor recommendation **Phase 4 — review at ~Day 270–365:** - Joint review, with counselor and Eli's therapist input, on expansion toward substantially equal time - Court review date calendared now, so the plan does not require a new motion to advance **Setback clause (include it yourself — it buys enormous credibility):** any confirmed positive test, missed test without documented cause, or new alcohol-related charge returns the schedule to the prior phase for 60 days, with reinstatement on the same objective terms. This is not a concession; it is proof you are planning for reality rather than promising perfection. --- ## 8. File now, negotiate, or wait? **Negotiate now; do not file now.** - Daniel has offered a written step-up after 90 additional days of negative tests. That is essentially Phase 1 → Phase 2 above. You should accept the concept immediately and negotiate only the *details* — the objective triggers, the automatic advancement, and the calendared review — so that "consider" becomes "shall." - **What negotiation buys you:** speed (a stipulation can be entered in weeks), no cross-examination on the wedding or the ten days, no adverse credibility findings, a preserved co-parenting relationship, and a plan that advances *automatically* instead of requiring you to re-litigate every six months. - **What litigating now costs you:** on this record, a likely order that looks like Phase 1 anyway — but with findings about candor attached, and Daniel's goodwill spent. - **Waiting is not passivity.** Every week of monitored negatives, IOP attendance, and resolution of the criminal charge makes your record stronger. Time is working *for* you right now. Filing tomorrow freezes the record at its weakest point. - **Preserve the fallback.** We will paper the negotiation with a clear written proposal and a deadline. If Daniel stalls past Day 90 despite a clean record, we file — and then the record shows a compliant, transparent mother making objective proposals and an other parent withholding without reason. That is a case worth trying. This one is not. --- ## 9. The statement you need to be able to make You will say some version of this to Daniel, to the mediator, to your counselor, and — if it ever comes to it — to the judge. Learn it and mean it: > "Six weeks ago I drank at a wedding and I drove. I hit a parked car and I was charged with impaired driving. Eli was not with me, and I am grateful for that, but that was luck, not a plan — and I am not going to rely on luck where my son is concerned. I also waited ten days to tell Daniel, and Daniel was right to reinstate supervision. Not telling him was worse than the drink, because it made me someone he couldn't rely on for information about our son's safety. I have gone back to intensive treatment, I attend four meetings a week, I wear a monitor, my sister has my keys, and I test negative. I am not asking anyone to treat five weeks as if it were five years. I am asking for a written plan with dates and tests attached, so that Eli's time with me grows because the safeguards hold — not because I promised." ## 10. Bottom line The concrete course most likely to get you to substantially equal parenting time is unglamorous: **own the DUI without qualification, own the ten days, drop "it doesn't count" permanently, accept Daniel's 90-day framework and convert it into a binding step-up order with objective triggers and a setback clause, keep the monitor and the testing running past the point where anyone requires them, resolve the criminal charge, keep Eli entirely out of the adult conversation, and let the calendar do the work.** On that path, you are plausibly at alternating unsupervised weekends within about three months and in a serious conversation about near-equal time within a year — with a record and a co-parent that support you. The path you proposed tomorrow morning gets you a denied motion, a finding that you minimized impaired driving, and a longer road. I am ready to draft the stipulated step-up proposal today. Call me.