Divorce or separation is hard, especially if you have children. You want the best for your kids, but what if you're concerned that your ex isn't necessarily at their best? Our clients often ask how to ensure their kids are safe with their ex, especially with a history of drug or alcohol abuse. This article will discuss how the court makes custody decisions and whether a parent needs extra supervision.

Custody and Visitation Orders in New Jersey

Custody decisions are under the purview of the Family Court under the Chancery Division of the courts. In many cases, couples agree to a custody and visitation order that they submit to the court for entry. But if you can't agree or have special concerns about your ex's fitness to care for your children, you may need to ask the New Jersey Family Courts to make the decision for you. The Family Court will take allegations of a parent's drug abuse or addiction seriously.

When making custody and visitation decisions, the Family Court will consider the “best interests of the child.” Typically, the default custody arrangement will be joint physical and legal custody, and each parent is considered “fit” to parent unless proven otherwise. But as part of this determination, the court will examine whether one parent is unfit because of drug use. See N.J. Rev. Stat. § 9:2-4 (1997).

Procedure for Court Custody Decisions

Before granting custody to either parent, the court will follow a procedure, including:

• Custody Mediation: New Jersey offers free mediation services in divorce and custody proceedings. Typically, all custody determinations that don't involve an emergency will go through this process. However, if your case involves the safety of your children, your attorney may proceed to request an emergency custody order.
• Discovery: The parties will exchange information before the trial, including financial information, texts, emails, and medical records.
• Expert Assessments: The court may appoint experts to assess the safety of the children, the homes of each parent, and the mental health and development of the children.
• Trial: At trial, the court will hear from both parties and any independent experts assigned to evaluate the parents and children. The judge may also speak to the children “in camera” with only a court reporter present.

Can I Really Ask the Court to Drug Test my Ex?

In some cases, yes, you can ask the court to drug test your ex as a condition of retaining custody or visitation. You can also ask that your ex only be granted supervised visitation with the condition of staying clean and not using drugs around your children. If you have proof of your co-parent's current drug use, such as previous drug tests, arrest records, medical records, or other evidence, it may be an easy decision for the court. But if your ex has thus far flown under the “legal radar,” this task can be more difficult. Photos, videos, and witnesses can be helpful, particularly impartial witnesses with knowledge of your ex's drug use. Testimony from a social worker, your child's teachers or counselor, or a guardian ad litem may be helpful to your case.

You Need an Experienced New Jersey Family Law Attorney

If you're facing a divorce or custody battle and are concerned about your children's safety, you need a seasoned New Jersey family lawyer by your side. Attorney Joseph D. Lento and the skilled Family Law Team at the Lento Law Firm have been helping families like yours through divorce, separation, and custody issues for years. Find out how they can help you too. Contact the Lento Law Firm online or call them at (888) 535-3686 to schedule your consultation.