# Question 29: The Relapse Before the Step-Up Hearing

## Your role

You represent Tessa Rowan, a mother seeking more parenting time with her 11-year-old son. Tessa had a recent alcohol relapse after a long period of improvement. Counsel her candidly on whether to seek immediate equal custody, negotiate a phased plan, or delay litigation.

## Governing law

Assume the following custody rules apply:

1. A custody order may be modified upon a material change in circumstances when modification serves the child's best interests.

2. Best-interest factors include safety, stability, each parent's caregiving history, substance use, treatment compliance, ability to support the child's relationship with the other parent, the child's mature preference, and reliable professional evidence.

3. A recent relapse is a material safety fact but does not create an automatic permanent bar. The court considers severity, whether the child was exposed, candor, treatment response, testing, relapse-prevention structure, and sustained recovery.

4. A court may order supervised contact, testing, treatment, transportation limits, step-up conditions, and review dates rather than choosing only between sole and equal custody.

5. Emergency restriction requires a present and specific danger. Past risk alone does not establish an emergency when current safeguards adequately protect the child.

6. A child's preference is relevant but not controlling. The court should avoid placing the child in the role of deciding between parents.

7. Concealing a relapse, minimizing impaired driving, or attacking the other parent for raising safety concerns weighs against credibility and cooperative parenting.

8. A negotiated phased plan may be approved if it protects safety and provides objective conditions. A court should not order immediate equal time merely to reward parental progress.

9. Counsel must not present a sobriety history that omits a known relapse or characterize short-term negative tests as proof of long-term stability.

## Facts

Eighteen months ago, Tessa and Daniel Rowan agreed that Daniel would have primary physical custody while Tessa addressed alcohol misuse. Tessa received supervised Saturday visits and one midweek dinner.

For the next 14 months Tessa completed outpatient treatment, attended recovery meetings, maintained stable housing and employment, and produced negative random tests. Her visits expanded by agreement to unsupervised weekends every other week. No incident occurred while their son, Eli, was with her.

Six weeks ago Tessa drank at a wedding, drove home alone, and struck a parked car. Eli was with Daniel. Tessa was charged with impaired driving. She did not tell Daniel for ten days, until he learned from a mutual friend. Daniel returned visits to supervision.

Tessa immediately reentered intensive outpatient treatment, attends four meetings each week, installed an alcohol-monitoring device, surrendered her car keys to her sister, and has five weeks of negative tests. Her counselor describes her response as serious but states that longer observation is needed.

Eli's therapist reports that Eli has a strong, healthy bond with Tessa and wants more time with her, but becomes anxious when adults discuss drinking. The therapist recommends gradual expansion with reliable sobriety safeguards rather than an abrupt move to equal time.

Daniel has followed the current order, facilitates supervised visits, and says he will consider a written step-up after 90 additional days of negative tests. Tessa wants to file tomorrow for immediate equal parenting time and argues that the relapse “does not count” because Eli was not present.

## Assignment

Counsel Tessa on:

* Material change and the best-interest factors supporting expansion.
* The relapse, impaired driving, ten-day nondisclosure, and current treatment response.
* The significance of Eli not being present.
* Eli's preference and therapist recommendation.
* Whether emergency relief or immediate equal custody is supportable.
* A phased plan with testing, treatment, transportation, supervision, and review terms.
* Whether to file now, negotiate, or wait for a stronger record.
* The candid statement Tessa must make about the relapse and the concrete course most likely to improve custody safely.

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