A father was recently charged with child neglect. As is often the case in this type of litigation, the names of the parties involved were not released to the public. All we know are the father’s  initials, “R.S.”  Let’s call him Rob.

Rob has a twelve year old daughter, and an eleven year old son. Each child has a different mother.

Rob is not a model father. In 2001, he was convicted of drug possession with intent to distribute. He served four years in prison. Soon after he was released, Rob and the mother of his daughter argued during a visitation drop-off.  Naturally, Rob did what any real man would do in that situation: He twisted his then five year old daughter’s arm, resulting in a trip to the emergency room. After that, the mother in question obtained a restraining order.

In 2008, Rob beat his son to such a degree that he was charged with assault. His visitation with his son was suspended. At that time, he was also found to be abusing marijuana. The next year, he was allowed visitation with his daughter, but only under supervision by someone from the New Jersey Division of Youth and Family Services (DYFS). He failed two drug tests, for both marijuana and cocaine.  The tests showed that he was using cocaine and marijuana at the time of two supervised visits.

Rob admitted using drugs before the visits, but claimed that he had a high tolerance for drugs, and wasn’t “high.” The observant government worker who supervised the visits claimed that she saw nothing amiss.

Among the charges that DYFS filed against Rob was one of child neglect, for visiting his daughter while under the influence. The trial judge upheld the charge. The judge found that Rob “did place his daughter at substantial risk of harm by virtue of his coming into the setting when he should have stayed out.”  Among other things, the judge further reduced Rob’s supervised visitation time with his daughter.

Rob appealed the decision.  The three judge appellate court ruled in his favor.

The judges recognized that the use of illicit drugs is illegal. They also stated that a parent should not have even supervised visitation while impaired. Nonetheless, the judges ruled that being under the influence during child visitation, in and of itself, is not child neglect. In support of its ruling, the court noted that DYFS would be overwhelmed if every parent who used drugs at any time had to be reported.

Even if that point is true, though, it seems to me to be beside the issue. Here, the parent in question was not under the influence “at any time.” Rather, he had drugs in his system while visiting his child. Also, it was DYFS who charged him. If DYFS itself wasn’t afraid of being overwhelmed by cases such as this, why should the court have been concerned?

In any event, because Rob is now on the child abuse registry for other violations, the court’s ruling will likely be of little practical help to him.

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Marc S. Berman is an attorney with offices in Fair Lawn and Paramus.  Disclaimer: The articles posted here  are for informational purposes only, and are not intended as legal advice for specific cases. Readers  should not act, or refrain from acting, based upon any information presented here, but rather should retain an attorney to advise them.