When one parent is abusing drugs or alcohol, the most important issue isn't punishing that parent. It's protecting the child.
I've seen custody cases where one parent genuinely believes the other parent's substance use is putting a child at risk. These situations can become particularly difficult because the concerned parent may feel that something needs to happen immediately, while the normal court process can take time.
The first question is usually the most important one: Is the child actually in danger?
How Substance Abuse Can Affect Child Custody
Drug or alcohol use by itself does not automatically determine who gets custody of a child in New Jersey. What matters is how that behavior affects the child's safety, welfare, and the parent's ability to properly care for the child.
There is obviously a difference between a parent having a glass of wine with dinner and a parent becoming so intoxicated that he or she cannot safely supervise a young child. There is also a difference between an allegation that someone uses drugs and evidence showing that substance abuse is interfering with parenting.
If alcohol or drug abuse is creating unsafe conditions, inadequate supervision, impaired driving with the child, unpredictable behavior, or other risks to the child, it can become extremely important in a New Jersey custody or parenting-time case.
What If the Child Is in Immediate Danger?
Sometimes waiting for the normal custody motion process isn't appropriate.
New Jersey Family Court has a procedure for requesting emergent relief through an Order to Show Cause. These applications are generally intended for circumstances where immediate court intervention may be necessary to prevent irreparable harm to a child or protect the child's health, safety, or welfare.
Depending upon the circumstances, a parent might ask the court for emergency custody or restrictions on parenting time while the underlying issue is addressed.
But an allegation of substance abuse does not automatically make a case an emergency. A judge determines whether the facts justify emergent relief, which is why evidence matters.
If you believe your child is in immediate physical danger, contact law enforcement. Suspected child abuse or neglect can also be reported to New Jersey's Division of Child Protection and Permanency, commonly known as DCPP and formerly known as DYFS.
Evidence of Substance Abuse Matters
Custody disputes can become highly emotional, and simply telling a judge, "My ex has a drinking problem," is very different from being able to show why you believe the child is at risk. Depending upon the circumstances, relevant evidence might include police reports, DWI charges, treatment records that are legally obtainable, communications from the other parent, eyewitness information, prior incidents involving the child, or other documentation showing how the alleged substance abuse is affecting parenting.
The point isn't to collect ammunition against your former spouse. The point is to be able to explain specifically what is happening and why you believe it creates a safety problem for your child.
The Court Can Address Parenting-Time Safety
Not every substance-abuse concern requires permanently separating a parent from a child. Depending upon the evidence and the severity of the problem, the court can consider what arrangements are necessary to protect the child's best interests while the issue is addressed.
The appropriate response will depend heavily upon the particular facts. That's why these cases should not be reduced to "He drinks, so he shouldn't see the children" or "She uses drugs, so I automatically get custody." The real issue is the child's safety.
Don't Ignore a Serious Problem
If you genuinely believe the other parent's alcohol or drug use is putting your child at risk, don't ignore it and hope the problem resolves itself. Document what is actually happening and speak with an experienced New Jersey family law attorney about the appropriate next step.
At the same time, don't exaggerate an allegation of substance abuse simply because you're involved in a difficult custody dispute. Courts have to make important decisions about children's relationships with their parents, and allegations this serious should be based on legitimate concerns and evidence.
When a child's safety is genuinely at risk, however, there are legal options available. The key is determining how urgent the situation is and using the appropriate process to address it.
If you're dealing with custody, parenting time, or other issues involving your children during a New Jersey divorce, my free Divorce Smarter Course explains the process in straightforward terms so you can better understand your options and make informed decisions about what comes next.
Until next time,
Steve