Parenting Time, Substance Abuse and the Importance of a Well-Written Divorce Agreement

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Matt Rooney

is a New Jersey attorney, former Superior Court law clerk, and noted commentator who focuses his practice on family law, municipal court defense, and personal injury matters. He was recognized by SJ Magazine as a 2018 “Top Divorce & Family Attorney."

Latest posts by Matt Rooney (see all)

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Child Visitation Can Be Complicated When One Parent Has a Substance Abuse Problem and the Other Parent Perceives Safety Issues

Parenting time can be challenging enough following divorce. It’s even more difficult to navigate when one parent suffers from a substance abuse problem. In such challenging cases, family judges are forced to balance a parent’s rights with the best interests of the children. Courts may order “supervised” parenting time for parents with drug or alcohol abuse histories and/or a history of domestic violence. These arrangements are usually temporary and predicated upon some tangible and sustained progress on the road to recovery, but given budget cutbacks in recent years, are only possible when a mutually trusted family member or close family friend is willing to serve as the supervisor. For those reasons, New Jersey courts more frequently order unsupervised parenting time with strings attached. The Family Judge may require the parent with a substance abuse problem to clear other tangible hurdles as a condition of exercising additional future time with the children (e.g. regular attendance at Alcoholics Anonymous meetings, submitting to random drug testing by the Court, etc.) Upon successful completion of the conditions for a period of time, the Court will either (1) automatically permit a more regular parenting schedule or (2) permit an application for modification. But what happens when the parties’ property settlement agreement (PSA) or final judgment of divorce (FJD) acknowledges and addresses a substance abuse issue? Only for that issue to resurface later in a way that gives rise to safety concerns? A recent unpublished (and therefore non-binding) New Jersey appellate decision in Y.A.B. v. A.C.B tackled a few issues of critical interest to family attorneys and their clients…

The parties in that matter were married for approximately eight (8) years and had two (2) children. Pursuant to their matrimonial settlement agreement (MSA), the mother and father shared joint legal custody but the mother served as parent of primary residence. Their parenting relationship was complicated by the fact that the children’s father suffered from a long-standing substance abuse problem. Prior to the divorce becoming final, the father exercised supervised parenting time and participated actively in both AA meetings and therapy as part of his treatment. Accordingly, Article II of the parties’ MSA required dad to continue to participate in AA “at the direction of [his] psychologist as a condition to exercise his unsupervised parenting time. Mom was also allowed to take extraordinary precautions, including withholding his unsupervised parenting time, “should the Wife believe, in her sole judgment, that the Husband is under the influence of a substance when he appears for parenting time.” The Y.A.B. v. A.C.B appellate court ultimately upheld the trial-level court in its determination that the mother’s application to limit the father’s parenting time on suspicion of substance abuse was without basis. For example, the Court noted how despite the MSA giving the mother the right to withhold parenting time if the father appeared under the influence, mother never exercised her right to do so:

Nor has plaintiff demonstrated that defendant ever violated the terms and conditions of the MSA requiring defendant to undergo psychological treatment and attend AA meetings, or that the children’s best interests would be harmed by continuing their unsupervised visitation with their father. Indeed, at the time of the MSA, plaintiff knew of defendant’s alcohol problem and nevertheless stipulated to his unsupervised parenting time conditioned on his attendance at AA meetings and psychological counseling. She offers nothing new since then to warrant a change in that arrangement, except speculation from her private-eye surveillance, subjective concerns expressed by a mutual friend, and outdated information from an ex-girlfriend that, cumulatively, fail to establish the threshold showing for a plenary hearing.

These cases are difficult and fact-intensive. We’re here to help. The New Jersey visitation and divorce attorneys at DeMichele and DeMichele are skilled advocates who are ready to assist you your parenting plan and child visitation issues. If you’re considering divorce, we will explain the process, advocate for your interests and, when the time comes, attempt to settle your matter with a well-craft, comprehensive and forward-thinking settlement agreement. If you’re already divorced, or are grappling with sensitive parenting time issues related to your child’s other parent like those described above, we will zealously work to assert your rights and pursure your child’s best interests. Don’t wait. If you or a loved one has questions regarding parenting time, child custody or any other family law matter contact the child custody and parenting time attorneys at DeMichele and DeMichele. For a confidential consultation to discuss your situation call, contact us online by clicking here or call us at (856) 546-1350.