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Family court considers alcohol monitoring

By: dmc-admin//November 23, 2009//

Family court considers alcohol monitoring

By: dmc-admin//November 23, 2009//

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It’s a novel idea, but one that makes sense to some family law attorneys who practice in Waukesha County.

Circuit Court Judge Kathryn W. Foster is proposing a plan to incorporate an alcohol monitoring system, traditionally used in criminal courts, into divorce and child custody cases.

Foster said it is sometimes difficult in contested family cases, absent a drunken driving conviction, to get an accurate picture of whether one of the parties has an alcohol problem.

“There’s so much ‘he said, she said’ in family law matters that a neutral source that can either give assurances or document what’s going on can only be helpful,” said Elizabeth F. Bagley, of Stack, Fahl & Bagley LLP in Brookfield.

Bagley, who practices in Waukesha and Milwaukee, is unaware of any other courts that use alcohol monitoring in family court.

The Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet would provide objective evidence to support or discredit an allegation of alcohol abuse, Foster said.

The devices detect how much alcohol a person consumes and when. The information can then be downloaded and reviewed to determine if there is a violation.

The SCRAM bracelet is primarily used in drunken driving cases. But the proposal would allow to the system to be used as a tool to determine if treatment should be recommended or if a child’s safety is at risk.

“It’s not meant to be used in a punitive fashion,” Foster said. “[But] it would be helpful to determine if sanctions might be needed or a suspension of child placement.”

The bracelets could also cut down on the number of cases that are litigated, if one side is able to provide evidence that the other party is abusing alcohol.

That, in turn, could make cases less costly.

When one party alleges the other party has a problem, particularly in cases involving children, and “you take these cases to trial, the expense of a Guardian ad Litem and attorney fees can escalate quickly,” said solo family law attorney Sheila L. Romell.

A reliable, objective tool, rather than the parties on the stand “tearing each other apart” could spare clients financial and emotional stress, said Romell.

Without such a tool “it’s really hard to catch somebody and know exactly how much they’ve been drinking,” she noted.

Foster said the bracelet would also help eliminate concerns that “hyper-vigilant” spouses are falsely accusing their significant others of having a drinking problem.

Now, said Waukesha attorney Andrew C. Ladd, “if someone is being challenged, the person could say, ‘she’s just looking for any excuse to accuse me of something.’ [This is a] way to find out if the person really does have a problem.”

“That could shorten some proceedings,” he said.

Questions expected

While practitioners generally favor monitoring, it’s unclear if and when it can be mandated.

Ladd, who sits on a committee with Foster that will help implement the system, suggested that initially the bracelet might have to be voluntary.

“I think the biggest question is what happens if one person doesn’t want to do it,” Ladd said. “Can you force [him or her] to do it? I would doubt it in family court.”

And although the SCRAM bracelet is considered reliable, Bagley said that in criminal cases there have been instances where the devices recorded false positives.

“If SCRAM came back indicating alcohol and I had a client who was adamant that he didn’t drink, that might cause me to delve into whether something on the device wasn’t working correctly,” she said.

Ladd said judges may be able to impose sanctions such as supervised visitation if someone refuses to wear the bracelet.

“A lot of this we won’t know until judges start ruling on some of this,” he said.

Foster said the committee is expected to meet several times in the coming weeks to develop protocols and determine the best scenario for using the monitoring system.


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