DUI AND CHILD VISITATION — WHAT CAN I DO IF MY EX DROVE MY CHILD WHILE DRUNK?
Earlier this week, Albuquerque media covered the story of a mother that crashed while driving under the influence, killing her seven year old child. According to the report, both APD and CYFD were notified of similar events before the deadly crash took the seven year old’s life.
Court documents demonstrate that the mother was allegedly driving while under the influence.
The child’s father intends to file wrongful death claims against APD and CYFD. According to the father’s attorney, Adam Oakey: “. . . a video live-streamed on Martinez’s social media back in November shows [Mother] smoking while getting ready, A short time later, she’s seen taking a shot in front of her daughter Amariah.” Oakey goes on to say that Father notified CYFD about similar videos both five months and four days prior to the crash.
“This was preventable,” Oakey told reporters.
WHO SHOULD I CONTACT WHEN A CO-PARENT POSES AN IMMEDIATE THREAT OF HARM TO MY CHILD?
Parents that believe a co-parent poses an immediate threat of danger to a child should contact the following agencies:
The concerned parent should then file a Petition for Order of Protection in the county where the child lives. In this case, the Petition could have been filed with Second Judicial District Court.
Regarding the case at hand, Father took the right steps by notifying CYFD and APD. Unfortunately, APD generally takes a “hands-off” approach with domestic matters, and usually does not become involved with past domestic issues. Similarly, due to CYFD’s caseload, often investigations can take weeks or months to be completed.
FILING AN ORDER OF PROTECTION AFTER CONTACTING POLICE AND CYFD
After contacting APD and CYFD a parent should file a Petition for Order of Protection and clearly outline the act of abuse that has taken place. In this case, Father could have alleged that an act of abuse occurred based on Mother’s repeated acts of driving the child while under the influence. The alleged live-stream videos would support Father’s claims of abuse. The videos would also demonstrate that Mother posed a threat of immediate harm to the child.
When filing a Petition for Order of Protection, the “DV Court” in Albuquerque usually will enter a Temporary Order of Protection. This Temporary Order of Protection (TRO) can grant the other parent temporary, sole legal custody until a hearing can be held. At this hearing the assigned Hearing Officer/Special Commissioner will review the evidence and determine if it is more likely than not that an act of abuse occurred.
When there is a finding of abuse, the Hearing Officer can then establish temporary custody and time-sharing for six months. Eventually, “permanent” custody and time-sharing will need to be established in a related, “Domestic Matters case.”
DUI AND CHILD CUSTODY IN NEW MEXICO — THE IMPORTANCE OF CYFD’S TESTIMONY AT ORDER OF PROTECTION HEARINGS
As mentioned above, parents should immediately contact CYFD when they reasonably believe that the other parent poses an immediate threat of harm to their child, or abuse/neglect has occurred. The parent should then file a Petition for Order of Protection that clearly outlines the abuse/neglect that has taken place.
From the time that the Petition is filed, until the date that a hearing is held, CYFD should conduct an investigation regarding the allegations of abuse/neglect. The assigned investigator can then testify at the upcoming hearing regarding the investigator’s findings, and ultimately if the allegations of abuse/neglect have been substantiated (upheld) or un-substantiated (denied).
CYFD’s testimony at Order of Protection hearings is crucial and heavily influences the Hearing Officer’s ultimate decision.
WHAT IF AN ORDER OF PROTECTION WAS FILED WITH THIS SAD STORY?
The sad story of a child’s unnecessary death caused by Mother’s drunk driving demonstrates the importance of filing a Petition for Order of Protection. Based on claims that Mother had a documented history of driving the child while under the influence, it is highly likely that a Temporary Restraining Order would have been entered granting Father temporary custody until a hearing would be held.
At this hearing, Father could have presented the following evidence to demonstrate the immediate threat of danger to the child:
- The video evidence of Mother transporting the child while intoxicated;
- Any other evidence demonstrating an act of abuse;
- APD being contacted; and
- CYFD’s involvement.
Based on this evidence, likely an Order of Protection would have been entered. Arguably the video alone would demonstrate the necessary “preponderance of the evidence” to show that an act of abuse occurred. Likely the video alone would demonstrate that Mother posed an immediate threat of harm to the child.
Almost certainly an Order of Protection would have been entered if CYFD testified that an act of abuse occurred and that Mother posed an immediate threat of danger to the child.
Moral of the story – contact CYFD and file a Petition for Order of Protection when an act of abuse/neglect has occurred and the co-parent places your child in an immediate threat of harm.
(505) SANCHEZ WILL ANSWER YOUR QUESTION: “WHAT CAN I DO IF MY EX DROVE MY CHILD WHILE DRUNK?”
Does your ex drink and drive with your child? Are you wondering: “What can I do if my ex drove my child while drunk?” Matthew Legan Sanchez is a New Mexico restraining order and order of protection lawyer that has handled restraining orders across the entire state of New Mexico, from Albuquerque to Raton. Sanchez can answer your child custody and restraining order questions by calling (505) SANCHEZ.
What Can I Do If My Ex Drove My Child While Drunk?
