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!

[tbyte]

Sole custody is VERY difficult to get...for a father.
It is not so difficult for a mother to get sole custody.
What the judge will do depends completely upon their personal preferences, and is more heavily influenced by what they had for breakfast that morning than any legal statues or precedents.

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.

Congratulations!

hope mine works out the same