custody modification/drug abuse

Hi. I am in New Jersey.

I had joint (legal & physical) custody with my daughter's dad for the last 5+ years. In the last 3 years he had problems with drug abuse, and had gone into rehab less then 2 years ago for addiction to oxycontin (also marijuana), but was there mainly for the oxycontin addiction. At the time, I SHOULD have filed for a modification back then, but he voluntarily sent himself to rehab, which I thought was good on his part. I did not know he was doing oxycontin until he told me, right before he was about to go.

He came out of rehab and was doing fine, going to meetings, etc. Shortly after, I let him stay with me temporarily until he could save up for his own apt. Well, I thought I was helping him, but then he started doing drugs again. Also, instead of taking our daughter for his visitation time, he would send her to his mom's house, and just go over to visit her for a few hours each night, sometimes only one or two nights. There was no reason for this, since he was living with me anyway, our daughter should have been staying with us ALL THE TIME since we had JOINT custody. It all became a very awkward situation - I wasn't sure how to handle this aspect, I knew she should be with us the whole time cuz we had joint, but I didn't want it to somehow appear that I wasn't allowing him visitation by not letting her to go his mom's. I KNOW it was really stupid on my part, I just didnt' know how to handle the situation at the time.

I finally found proof that he was abusing drugs again, in my house, I had found empty drug bags piled up underneath the couch cushions where he would sleep. So I kicked him out and went to file for sole custody (full legal and physical) but cannot afford a lawyer so filed on my own. I requested sole custody and for him to have supervised visitation 2 nights per week, for a few hours each. We went to court a few weeks ago and I was *initially* denied, but only pending the results of his drug test. The judge ordered that if he failed the drug test, she would reconsider my petition. He did take the drug test. I was never told directly that he failed, but we were told we need to come back ASAP. We now have a court date for next week. I have to assume that he failed or we would not be going back.

I have done a lot of reading around regarding sole custody and have found that it is VERY hard to get. I don't know if his ongoing drug problem is enough to grant temporary sole custody. Can anyone provide feedback on that issue? Assuming he failed the drug test, that is at least some proof. On top of that, he has taken no responsibility or care for our daughter in at least the last 3 years. He sends her to his mom's THE WHOLE TIME, not as child care or a babysitter so he can work or anything like that. I do not know how to 'prove' that other than my own testimony from when he stayed with me.

After doing some thinking, I have decided to ask the judge for us to keep joint legal custody, but I would have full physical custody, and he would have supervised visitation by his mom from Saturday to Sunday (overnight). That is what he has been doing the last few weeks anyway due to his work schedule, so our daughter would already be used to it. He works 2 jobs now and would not have any other time to visit her. I think he should have to go through drug counseling, at least for 6 months, with drug tests. Once he completes that, then we could go back to court and work out more visitation. I am trying to get him to agree with this before we go back to court so we can present it to the judge. Do you think this sounds too lenient on my part or fair? Will the judge let us come up with our own agreement or would she only rule on my original petition? Also, any other LEGAL feedback would be appreciated.

Thank you!

No one has a crystal ball, of course. But, I suspect that you have grounds for sole custody given his drug use, rehab, and subsequent relapse.

My feeling is ( and this is only opinion, no psychic abilities) that the judge will not entertain any motions amending the first cause of action. Meaning--she will rule on what has been presented. HOWEVER, she may be angered by his untruths (if he lied and said he was clean) and she may rule completely against him---there is no way to tell. Ever see cases where the plaintiff asks for a certain amount of money in a civil trial and the judge awards MORE? While your case isn't the same in that manner, she may take a harder line than you have if she is angered or offended by his drug use or his lying about it. It all depends.

I commend you for your taking such a proactive stance in protecting and nurturing your child. You could serve as an example to may posters here who mess up their lives, then want someone here to fix it for them in five sentences or less.

I would be interested in knowing how the judge rules. I suspect letting her rule, and letting her make her own restrictions is best, so it will remove you from being pressured later to relent. In other words, if you make an agreement with the dad, and the court approves it, later he can try to coax you into changing it. But, if the judge writes the order, outlines the restrictions, etc herself, your ex will have no cause to badger you or blame you for being "too harsh" or "too mean" , and he will never be able to tell your child, "Guess what MEAN MOMMY DID??" He will have to say, "GUESS WHAT DRUG ADDICTED DADDY DID? HE LOST CUSTODY BECAUSE HE WAS FOOLISH". Allowing the judge to handle this takes a lot of responsibility off YOUR shoulders.

I found this information pertaining to your state.

Temporary Custody - "De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court ordered custody". In order to formalize custody before you begin litigation, you will need to file for temporary custody. Temporary custody will be based on the "best interests" of the child standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing.
Sole Custody - Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.
Split Custody - Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.
Joint Custody - Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.

• Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.
• In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent.
• Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.

The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement.
Other factors include:

• willingness to share custody;
• fitness;
• child's relationships with parents;
• child's preference;
• ability to stabilize child's school and social life;
• closeness to parent's homes (primarily a factor during the school year) ;
• employment considerations (e.g. long hours, extensive travel, etc.);
• age and number of children;
• financial status;
• benefit to parent.

Types of Custody in a New Jersey Divorce



I don't know why you could not be granted sole custody, in particular, not just because of the drug use, but also because he did the drugs IN YOUR HOUSE where your daughter DOES live. It isn't a stretch to believe he would do the same in his mothers house---so, while Im not criticizing her character, I am not certain she is a good candidate for being the supervisor for those visits. The safety of the child is paramount----and there is no guarantee of safety with a man who does drugs in our own house where she resides. I think sole custody is a very viable option and a safe one, too.

The best thing to do would be to ask for a free consultation with an attorney in New Jersey, one who knows the judge --perhaps he or she can better predict the way a particular judge rules in such cases. Some judges are "tough" on certain issues.

Thank you very much for your reply and feedback

The reason I started to think of a different arrangement is that I am afraid the judge won't be harsh ENOUGH. I am afraid she will tell us to keep the same agreement and that he just has to have supervision on his visitation time. That would defeat half of the reason for this, being, on top of the drug problem, he takes no responsibility for our daughter, does not feed or clothe her, does not have her in his care on his time, at all. She goes to his mom's house, it's been that way for a while now. The problem is that I have no way to prove that with documented evidence, although we ALL know, including my daughter and his mom, that it is true. If he is not exercising his visitation and chooses drugs over her, what is the point in joint custody?

Anyway, I am afraid she will be too lenient and leave us with the current order, just adding supervision to his visitation.

I am not certain that you will have trouble proving anything to a judge about a drug addict who used drugs in your house where the child was living. If you feel she is going to be too lenient, ask her to amend the order in light of the circumstances, stating you were giving him the benefit of the doubt, assuming he was clean when you first petioned the court. That is reasonable and you are acting and reacting to the information as you receive it----and not just he said/she said. Therefore, now that you know, you want to amend your request---but I suspect she will have a few things of her own in mind.

Express yourself to the judge as you have done here----and I suspect you will prevail. Your child deserves to be safe and not be at risk around this behavior your ex seems intent upon perpetuating.

Let me know how it goes.

Thanks again. It is a relief to hear your opinion. I think I am going to reconsider keeping joint legal, and stay with my original petition for sole. At least in the process, I have set myself up to accept joint legal if the judge orders it. I will still ask that he can have his supervised visitation one night - overnight - with his mom, so they can still go to the shore house (which my daughter LOVES) over the summer (it would still work out in the school year too). As much as I dislike his mom personally, I know she wouldn't let him do any drugs around her.
Btw, he does not live with his mom. He just left staying with me and is staying at random friends' houses until he gets his own apt. (if he ever does!).

Thank you again, I feel better after hearing your input (and no, I won't used it against if you are wrong later)

I applaud you for your realizing how important your ex's family can be to your child, and having the maturity to look beyond your differences and appreciate the value these people can bring to her life. You are a wise young woman.

Let me know how this turns out. I'll be thinking of you.....

Hi again..I am getting really nervous, court is coming up this Tuesday. I am afraid of the questions the judge will ask me - like for one, why do I think just the 2 day supervised visitation would be good for our daughter? I think I have to prove that his drug problem is a 'danger' to our daughter. The judge already knows the dad has been passing his parenting responsibilities to his mom, I explained that last time we were in court.

However, the person he stays with since I kicked him out has a history of drug use, the dad has told me this himself. I confronted him about it the other day and he said the guy "doesn't do drugs anymore" but is an alcoholic. So wouldn't that count against him too? If we are to share custody, how am I supposed to allow our daughter to go see her drug addict dad at an alcoholic's house, where there is no bedroom for our daughter to sleep in? Should I focus more on this aspect, rather than on the fact that the dad sends her to his mom's? Shouldn't I technically/legally be assuming that when he takes our daughter, she is in his care? Do you think I should approach it in this way when talking to the judge? Ugh I am so confused.

I just don't know how to explain that only 2 day visitation is in our daughter's best interests. I know my own reasons, but I don't know how to present it to the judge with legal words :/ I'm probably just being negative but I'm so afraid I'm going to lose and have to keep dealing with this.

Well, he didn't show up for court and I pretty much got what I asked for.

We keep joint legal, I have primary physical. His visitation, supervised by his mom or other family member, starting this weekend: Saturday to Sunday overnight, home to me by 8pm Sunday. The following weekend, only Sunday from 2pm to 8pm. Rotating every other weekend, supervised. That is pretty much all that is in the order. So this is how it will be until one of us goes back to court to change it. I am hoping between now and then we can come to a new agreement and go back a few months from now, after he's shown he went to some drug counseling and passes some drug tests or something.

Whoaa, he never showed up?? That, more than anything, speaks to his character more than you ever could have.

Hopefully, this will be a stepping stone for the future in the unfortunate event he doesn't change--you have already established yourself as the controlling parent, as well as the more stable, reliable, and mature.

Good luck and thank you for letting me know.

Thank you for your supportive words since I originally posted

I am so relieved. I can't believe he didn't show up either. In one way it was good for me because it was easier to get the order close to what I was asking for, but also sad for our daughter that he didn't care enough to at least come and represent himself. I guess he felt too dumb to face the judge after failing the drug test