This is terrible. DYFS will take the children if they find them alone with the drug abusing parent. I would need to review your prior orders to attempt to understand and explain how a judge could make this decision.
Please be advised my answers to questions does not constitute legal advise and you should not rely on it, due to the fact that we have never met, I have not been aprised of the facts in you case nor have I reviewed any documents.
Have you been back in front of the judge who ordered the drug test? If the motion you filed is separate from the case filed by dyfs in the past, then you could go back to the judge and ask for the relief you want, in light of the positive results.
I would need to see your prior court orders to understand what's going on. Is the case in court under an FD docket #? I am wondering whether you brought your ex to court by making your own motion or if the case was brought by dyfs.
I have seen dyfs reluctant to intervene when there is atleast one fit parent and a custody case is under way before a family judge. That said, its hard to imagine that dyfs agreed to unsupervised parenting time for your ex after the positive drug test.
This situation may require you to follow up with the court who ordered the test. However, I can't advise you without knowing more.
Outside of a DYFS matter you have a right to make a formal application to the Family Court, likely under your "FD" Docket Number to seek a modification of the custody and parenting time plan based on the "change of circumstances," i.e. your ex re-using heroin. For a detailed explaination of your options you should schedule a consultation with an experienced family law attorney who can walk you through the process.
Kenneth A. White, Esq.
New Jersey Family Law Attorney
The Answer provided was based on the limited information provided, and represents information based on the law in general, not a legal opinion that can be relied upon. Before a formal legal opinion can be offered I would need an opportunity to review all possible relevant facts and circumstances. You cannot rely on the advice of an attorney given over the internet. The exact facts of your sitaution, including facts which you have not mentioned in your question, may completely change the opinion that is being offered. Please be aware that the above comments are neither protected by attorney-client privilege, nor may the same be the basis for a malpractice lawsuit.
First, I would urge you to consult with an experienced Family Law attorney regarding your matter as soon as possible to discuss the specific facts and circumstances involved in your matter and guide you accordingly. Given the facts that you have provided, it may be appropriate to file an emergent motion with the court seeking residential custody of your son. At the very least, it appears that it would be appropriate to file on a non-emergent basis, providing proof of the results of the hair follicle test as well as all other available evidence that supports your application for full custody. Please also review the articles located at the link provided below for additional information. Best of luck to you and your son!
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You should consider filing in the family courts, separate from the Division.
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