Custody of your minor son or daughter can be a complicated part of co-parenting or a divorce. Child custody cases can sometimes become contentious, with one or both parents bringing allegations of substance abuse against the other. If your child’s other parent alleges your unfitness due to alcohol consumption, a driving while intoxicated (DWI) conviction could support their claims. However, you do not have to accept this consequence without a fight.
A Houston DWI lawyer from our team can explain how a DWI can affect child custody in Texas and its specific impact on your case. We will also clarify the steps we’ll take on your behalf to minimize the potential damage to your good name, community standing, and employment, since all of these factors can play a role in your custody case.
A DWI May Hurt Your Custody Case Further if a Child Was in Your Car
Driving while intoxicated with a passenger younger than 15 is its own felony: DWI with a child passenger, Penal Code § 49.045. Prosecutors sometimes add endangering a child under § 22.041. Either one hands the other parent’s lawyer an exhibit.
The state takes endangering a child and DWI offenses very seriously. A conviction of this type could cause the court to have concerns over your fitness as a full or part-time custodial parent. Multiple DWIs could worsen the court’s view.
If you were arrested for DWI with a child under age 15 in the vehicle, you could face more than loss of custody. Under Penal Code § 49.045 it’s a state jail felony: 180 days to two years in a state jail facility and a fine up to $10,000 (§ 12.35).
Why a DWI Could Be Viewed as a Custody Risk
Texas courts look at a number of factors when they decide custody. The court’s goal is usually to put the child in the situation that’s in their best interest. If the other parent submits proof of one or more DWI convictions, it could make the court question your parenting. If you’re asking for sole or joint custody, or even just visitation with your son or daughter, a DWI arrest could be construed as:
- Poor judgment and poor decision-making skills that will affect the child
- An inability to safely manage custody transportation and exchanges
- An unhealthy dependence on alcohol that could be viewed as abusive
Even an arrest that doesn’t lead to a conviction can tarnish your reputation and threaten your ability to get or keep custody. A lawyer in your area can help you get through this complicated situation.
Penalties for DWI Conviction in Texas
Under Penal Code §§ 49.04 and 49.09, you could face the following penalties upon conviction for DWI:
- First conviction: fine up to $2,000, 72 hours to 180 days in county jail, a license suspension of 90 days to a year, and a $3,000 state traffic fine (Penal Code §§ 49.04, 12.22; Transp. Code §§ 521.344, 709.001)
- Second conviction: Fine of up to $4,000, incarceration in the county jail for up to a year, and loss of your driver’s license for up to two years
- Third conviction: Fine of up to $10,000, imprisonment for up to ten years, and loss of your driver’s license for up to two years
What family courts actually do after a DWI
The judge decides what’s in the child’s best interest (Family Code § 153.002). The usual result isn’t losing your kids. It’s conditions in the possession order: no alcohol before or during visits, a breath test on a phone-linked device before each exchange, supervised visits for a while, or exchanges at a neutral spot. A dismissal or a deferred takes most of the force out of those requests. We handle the criminal case and work with your family lawyer, because what you plead to in one court gets used in the other.
You could also accrue additional state fines and face sentence enhancements if a child passenger was in your vehicle when the police pulled you over.
A DWI Lawyer May Help You Avoid a Costly Conviction
Conviction on DWI charges (particularly second or subsequent convictions) can derail your life in multiple ways. Fortunately, an arrest for DWI does not have to end with a conviction. When a Houston criminal defense lawyer in your area represents you, their familiarity with the legal system may help you mitigate the charges you face.
Your lawyer may be able to:
- Negotiate plea bargains for lesser charges and lighter penalties
- Build a defense strategy to prove the charges against you can’t be proven beyond a reasonable doubt
- Prove there was no probable cause for your arrest
- Challenge blood alcohol concentration (BAC) testing equipment and results
Your lawyer will also go over the details of your arrest, looking for any violation of your rights that could give you an edge in your defense. You don’t have to fight alone to protect your freedom and your custody rights.
Contact Our Team for Help With Your DWI Case Today
Were you arrested and charged with DWI while fighting for custody of your son or daughter? A DWI conviction can negatively impact your child custody case and limit your time spent with your child. Our law firm can help you minimize the potential harm.
Learn more about how a DWI can impact your child custody case in Texas and how hard our legal team will fight for you. If you have a custody hearing coming up, call us before it, not after.
Charged with this in Houston, or worried you’re about to be? Call (713) 664-4000 or fill out the form on this page for a free, confidential consultation. We’ll tell you where your case stands and what we’d do first.
A Houston DWI and criminal defense attorney since 2009 who has never worked for the prosecution. Jay is an ACS-CHAL Forensic Lawyer-Scientist, a certified practitioner and instructor of Standardized Field Sobriety Testing, a certified Drug Recognition Expert, and trained in forensic chromatography. He is a member of the National College for DUI Defense, a founding member of the DUI Defense Lawyers Association, and a commissioner on the Texas Indigent Defense Commission, appointed by Gov. Abbott in 2023.
Last reviewed July 2026 · This article is legal information, not legal advice. Read Jay’s full bio →