If Parenting Time is Going to Be Conditioned on Both Sobriety and Total Abstinence, The Agreement Better Say So
This is not a perfect world we live and and few of us are perfect and free from vices. There is, however, a difference between imperfections and either addiction and/or mental illness that could impair a person's ability to parent their children. Often, when these issues arise, we try to build safeguards into agreements to protect the children where there is a history of alcoholism, drug abuse or significant mental illness.
These are always tricky cases because the infirm party often (1) is in denial or at least downplays the severity of the issue, (2) doesn't want their problem in writing in a written agreement; (3) there is no agreement as to whether there even is a problem; etc. As such, there are times that we do our best with agreements to put as much teeth as possible into agreements to avoid the cost of trial, not over the actual parenting time, but the protections to be put in place when someone falls off the wagon. With compromise, however, comes the chance, not necessarily of actual risk to the children (thought that certainly is possible too) but the possibility of putting the kids in danger and being left to fix a problem after damage has been done.
The title of this post is came to me after reading the Y.A.B. v. A.C.B. unreported Appellate Division decision released on November 28, 2012. In that case, despite evidence that he former husband, who had acknowledged alcohol issues, may have been drinking (private investigator reports showing him buying alcohol, Facebook pictures of him holding a beer and a Certification from an ex-girlfriend regarding the husband's alcohol use), and protective language in the agreement, not only was his parenting time not meaningfully curtailed, but the ex-wife was seriously chastised for bringing her application.
The reason for this is that the agreement did not specifically require that the husband remain sober and abstinent from alcohol at all times. Rather, the agreement provided:
The parties stipulate that the Husband has a history of substance abuse. Prior to
the Husband exercising unsupervised parenting time, he will contact his
psychologist and authorize his psychologist to speak to the Wife, in order for the Wife to provide a history to the psychologist if such communication is permitted by her Code of Ethics. It is understood between the parties that the psychologist shall not make any comment to the Wife regarding the Husband’s treatment and will honor the Husband’s psychological patient privilege. The parties acknowledge and agree that the Memorandum of Understanding attached hereto . . . will thereafter be signed and [its provisions requiring that defendant’s parenting time be supervised] will be deleted from the Memorandum of Understanding. The Husband acknowledges and agrees that he shall continue to attend AA meetings, the number of meetings and duration of attendance shall be at the direction of the psychologist. The Husband further acknowledges and agrees that he shall continue to seek treatment from his psychologist until the psychologist determines that he may be released from treatment. In the event the psychologist releases the Husband from treatment and/or terminates the Husband from treatment, she shall so advise the Wife by issuing a letter to the Wife. The Husband hereby authorizes such letter to be issued from the psychologist to the Wife.
Should the Wife believe, in her sole judgment, that the Husband is under the
influence of a substance when he appears for parenting time, then the Wife, in her sole discretion, may decline to turn the children over to the Husband. Should the Husband choose, he has the right to raise this issue with a Superior Court Judge and both parties will be bound by the determination of the Court as to how future parenting time shall occur.
Now I know that the agreement, on its face, does not explicitly require that the husband stay sober or abstain, but can it be inferred given the AA and other language contained therein. In my humble opinion, this inference seems clear but a trial judge and Appellate Division disagreed. The little that I know about alcohol and substance abuse is that if you are an addict, you are supposed to abstain. Was this a situation that I warned of in my blog of last week entitled "Mean What You Say, Write What You Mean"? Or was it a situation where you people were just trying to get the best agreement/protections that they could get to avoid trial because there were battles on the language for the agreement?
The take away from this case seems to be that , if the understanding that it is bad for the children and everyone else if an alcoholic drinks ever , then the specific prohibition should be spelled out in the agreement if at all possible.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or email@example.com.