ARTICLE OVERVIEW: If you use drugs, the State of NJ sees you as an ‘unfit’ parent… and you can lose parental rights to your children. This article reviews the basic custody laws and how courts decide on child custody cases in New Jersey. Plus, we offer helpful links on where to find rehab and legal help.
TABLE OF CONTENTS:
- “The Best Interest of the Child” Policy
- Supervising Courts
- Laws
- Types of Custody
- “Proof” of Drug or Alcohol Use
- Parenting Time
- What Happens If I Test Positive?
- Can Someone Subpoena My Records from Rehab
- How to Be Reunited with My Kids?
- What Happens When I Finish Rehab?
- Where to Find Rehab?
- When to Get Legal Help
“The Best Interest of the Child” Policy
Child custody cases are governed by the “best interest of the child” policy in the State of New Jersey. The well-being of the child/ren always comes first. Even though there is no standard definition of the “best interest of the child”, this policy refers to the deliberation that courts take into consideration when deciding what type of services, actions, and orders will best serve a child and who is best suited to take care of the child.
Judges consider many factors before making a final decision about custody. Some of these factors include a child’s:
- Education
- Health
- Safety
- Protection
- Welfare
One of the guiding principles in New Jersey is the importance of family integrity. Generally, courts avoid removal of the child from their home. [1] However, if you’re using drugs or drinking around you kids, you can lose your custody rights.
What Courts Make Decisions?
The Superior Court is the main court in New Jersey with statewide trial and appellate jurisdiction. This court has three divisions: Appellate, Chancery, and Law Divisions. Chancery and Law Divisions function as trial courts, while the Appellate Division hears appeals from the two.
Family matters are handled in the Trial Court Services under the Chancery Division. The Family Court is responsible for handling all family cases. This court has jurisdiction over matters involving divorce, child custody, child support, paternity, parenting time, domestic violence, juvenile delinquency, family crisis, foster care placement, kinship legal guardianship, child abuse and neglect, termination of parental rights, and adoption. [2] You can find the contact information for all family divisions in each county on the official New Jersey Courts website. [3]
Laws
47 US states have laws within their child protection statutes that address the issues of parental substance abuse as child abuse and neglect. New Jersey is NOT one of them. Currently, this state doesn’t address the issue of children exposed to illegal drug activities. [4] However, there are many laws that protect children. These laws include:
1. The Uniform Child Custody Jurisdiction and Enforcement Act
This act minimizes or completely eliminates custody conflicts from state to state by giving the power to state courts to recognize and enforce custody orders made in other states. This act is known as NJUCCJEA in New Jersey and codified at N.J.S.A. 2A:24-53 to-95. [5]
2. New Jersey Statute Laws
New Jersey Statues Chapter 34 governs Divorce and Nullity of Marriage, Alimony and Maintenance, and Care and Custody of Children. Some of the specific laws include:
N.J. Stat. Ann. 2A:34-54: This act explains the meaning of all terms regarding child custody. [6]
N.J. Stat. Ann. 9:2-4: This act elaborates on types of custody, and the rights of both parents. Most important, this law mandates that the family court must consider ‘fitness’ of each parent in child custody rulings. [7] In other words, one parent’s substance abuse can lead to a finding of “unfitness” and thereby loss of custody.
Types of Custody
In New Jersey, both biological parents have equal rights to custody of their minor children. New Jersey has two different types of custody arrangements:
1. Legal custody. This type of custody gives a parent the right to make decisions in regard to the care of the child. These decisions include a child’s medical care, education, and education. There are two legal custody arrangements:
- Joint legal custody. Both parents share responsibilities for making the decisions for the child’s well-being.
- Sole legal custody. Only one parent has the right to make decisions for the child’s development.
2. Physical custody. This type of custody determines the living home of the child. There are two types of physical custody arrangements:
- Joint physical custody. This custody is granted to both parents if the child is going to spent equal time with both parents.
- Sole physical custody. This custody is awarded to the parent who will provide permanent care of the child, while the other parent will be given visitation rights.
What’s “Proof” of Drug or Alcohol Use?
Parental drug use can make one parent ‘unfit’ for custody of their children. If you suspect that your spouse or ex is drinking or using drugs around the children, you may request the court to order a drug test by filing a motion and providing evidence of the substance abuse. Never make falsely accusations in order to restrict custody or parenting time. Family court judges take false accusations very seriously.
Some of the evidence that can support accusations of substance abuse can include:
1. Direct evidence. Videos, photographs, social media posts, or text of the parent who is using substances are considered as direct evidence. All of this evidence may be taken into consideration only if their legitimacy can be proven. Keep in mind that sometime photographs don’t carry the weight for positive outcomes. For instance, if a person is surrounded by drugs or empty bottles, it doesn’t mean that the person has consumed them.
2. Drug tests. This is most valid type of evidence to prove a person’s substance abuse. The court may order drug testing for both parents.
3. Recorded history of drug and alcohol use. Substance-related criminal arrest records are a ‘preponderance of the evidence’, making them the most reliable proof of a substance use disorder.
4. Witness’ testimony. You can enter your testimony into evidence, if you have witnessed how your spouse is using substances around the child.
Parenting Time
Non-custodial parents have the constitutional right for visitation hours or parenting time with their children. Usually, parents who have been using substances are restricted in their parenting time. In New Jersey, the court encourages parents to work together in creating visitation schedule that suits in the best interest of the child.
Still, the court judge has the last word in arrangement for parenting time or visitation rights. The court always reviews any agreements before making the final decision that works in the best interest of the child. In New Jersey, there are four types of visitation:
1. Reasonable visitation. If parents have good communication, there is no need for a fixed visitation schedule. They can work out a reasonable visitation plan which could be flexible.
2. Visitation schedule. If parents cannot arrange a visitation plan altogether, a court will implement a visitation schedule that it believes is appropriate for both parties.
3. Supervised visitation. If the court believes that it is not safe for the child to be left alone during parenting time, a supervised visitation is arranged. This means that parenting time is being monitored by a supervisor who is appointed by the court. New Jersey has enacted the “Supervised Visitation Program”, which promotes court-ordered supervised visitation to take place at an approved community organization.
4. No visitation. The termination of parenting time occurs only in most extreme cases. A petition must be filed to terminate parental rights with a proof that the child is endangered. This type of restriction can be required to protect the child.
What Happens if I Test Positive?
Positive drug test doesn’t mean that you’ll lose custody of your child for good. However, it can look bad if you test positive for illegal drugs such as cocaine or heroin. These drug tests are generally seem more seriously than testing positive for a small amount of alcohol. And depending on the drug test results, the court may take few actions.
First, the court may order that you abstain from using alcohol and drugs 24 hours before and during the visitation hours. Also, the judge may order a temporary supervised visitation hours until the case is closed.
Further, the parent who is using may be ordered to take general parenting classes as well as addiction treatment education sessions. If you successfully finish these courses, you will show the court that you are eager to create a better environment for your child.
Finally, the court may order a second drug test after 60 or 90 days. If the test is negative, it will show that you are changing on better for the child’s sake. It will prove that you are capable of taking care of your child. But, if the test comes back positive, you may have problems with being granted custody or having more parental rights.
Can Someone Subpoena My Records from Rehab?
Medical records access is carefully regulated by federal and state laws. Basically, these laws are intended to protect the privacy of a patient’s medical information. In principle, medical records should never be automatically disclosed after subpoena without first confirming the sufficient authority. Still, only licensed clinics in New Jersey may subpoena medical records if the patient is a named party in the case.
The main laws that govern the use of medical and rehab records follow.
Federal Statute 42. The “Confidentiality of Records” law states that the identity, diagnosis, prognosis, or treatment regarding to substance abuse education, prevention, training, rehab, treatment, or research which is conducted, regulated, or directly, or indirectly assisted by any department/agency of the U.S. shall be confidential and be disclosed only for the purposes and under circumstances authorized by a court order. [8]
Meaning: The records may be disclosed only by court’s orders if the patient is a part of criminal or family law case.
The Health Insurance and Portability and Accountability Act of 1996 (HIPAA) is a federal law whose goal is to protect medical records, patient’s confidentiality, health insurance data, billing information, and other health information. [9]
Additional New Jersey state laws that protect privacy include:
N.J. Stat. Ann. 30:4-24.3 Confidentiality; exceptions. This law states that medical records are confidential but may be disclosed to a patient, upon court order, and other exceptions. [10]
N.J. Stat. Ann. 26:2B-20 – Confidentiality of substance abuse treatment records. Addiction treatment records are confidential and privileged to the patient. However, the information may only be disclosed pursuant to a ‘proper judicial order whether in connection with pending judicial proceedings or otherwise.’ [11]
This list is not extensive and is not intended to provide legal help. For more detailed help, consult with a lawyer.
How to Be Reunited with my Kids?
The answer is simple: Follow the court’s orders.
If the court orders addiction treatment, complete it. That’s the only way that can lead to reunification with your children. BUT, the key for successful treatment is the willingness to change for yourself. To move forward in life, you must do it for yourself. What’s the point if you are going through treatment just to win a case?
If you are not entering treatment for yourself, you may easily relapse, and get caught again in the viscous cycle of addiction.
Hope is here. American Addiction Centers offer a wide range of services that can help you break free from substance dependency. Not only do we treat you, but we treat your family, too. We can help you develop:
- Healthier communication skills
- Coping skills to deal with stress and triggers
- Problem-solving skills
Our final goal is to help you become a better person for your own sake. Once you’ve acknowledged yourself as a better person, you will become a fit parent for your children.
What Happens when I Finish Rehab?
Completing an addiction treatment program is only the first step on the journey to lifelong recovery. In fact, recovery is a long-term process that requires hard work long after treatment is finished.
Enrolling into an aftercare program is essential for lasting recovery. A good aftercare plan includes counseling sessions, family therapies, a stay at sober living house, and group meetings. The goal is to help a person in early recovery to manage stress, deal with cravings, and avoid triggers. Additionally, having a structured aftercare plan will show the judge that you work on your recovery, and the chances of gaining a shared custody will increase. Also, keep in mind that you always need to follow court’s orders.
Once you are clean and sober, you can file a motion for a modification of child custody. [12] Be prepared that the court will order a drug test as a proof of your sobriety. Also, the court may request a child custody evaluation. It is a process in which a mental health expert evaluates you and makes recommendations to the court for custody and visitation that is in your child’s best interest. Evaluator will report everything to the court.
Follow the law, and consult with your lawyer before filing the forms. Change is always possible, you just need to work for it.
Where to Find Rehab?
Finding a rehab that fits your needs may seem difficult, but there many rehab facilities in New Jersey. The first thing you should do is to want to make a change. Then, focus on the solution. You can start working on a solution by checking in with these state and federal contacts:
- SAMHSA’s National Helpline – 1-800-662-HELP (4357)
- SAMHSA’s Treatment Locator [13]
- New Jersey’s Division of Mental Health and Addiction Services [14]
- CALL OUR HOTLINE
Don’t wait until is too late… Reach out to help yourself. Our caring admission consultants are waiting for your call day and night.
When to Get Legal Help
Child custody cases are complex and sensitive. Even though it may be hard to find the right lawyer, there are many factors to consider before making the final decision. But if you cannot afford to hire a lawyer, the court will appoint a state attorney for you…. or you can access legal help through local services that provide pro-bono help or low cost services. [15]
One of the best places to start searching for a lawyer is through New Jersey State Bar Association. [16] Additionally, you can ask for personal referral from friends or family.
The bottom line is this: Your kids need you!
To learn more about how to quit drinking or using…call us today. Our compassionate hotline operators are available 24/7 to take your call. We know addiction. You can live a better life for you and your children. Start today!
Reference Sources: [1] Children Welfare: Determining the Best Interest of the Child
[2] NJ Courts: Family Division
[3] NJ Courts: County Information on Courts
[4] Children Welfare: Parental Drug Use as Child Abuse
[5] NCJRS: The Uniform Child Custody Jurisdiction and Enforcement Act
[6] NJ Legislate: N.J. Stat. Ann. 2A:34-54 Definitions
[7] NJ Legislate: N.J. Stat. Ann. 9:2-4: Custody of child; rights of both parents considered
[8] Gov Info: 42 U.S.C. 290dd-2 – Confidentiality of records
[9] HHS: Your Rights Under HIPAA
[10] JUSTIA US Law: New Jersey Code: N.J. Stat. Ann. 30:4-24.3 Confidentiality; exceptions.
[11] NJ Legislate: N.J. Stat. Ann. 26:2B-20 Records; confidentiality; rights of patients
[12] NJ Courts: How to File a Request to Modify a Non-Dissolution “FD” Court Order
[13] SAMHSA: Treatment Locator
[14] NJ: Division of Mental Health and Addiction Services: Addiction Services Treatment Directory
[15] NJD: Legal Aid and Legal Services
[16] New Jersey State Bar Association
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