Protecting Children’s Safety: The Divorce Court’s Awesome Power

New York Law Journal

In 2016, ESPN’s “30 for 30” series released “Doc and Darryl,” a documentary profile of the former New York Mets legends Dwight “Doc” Gooden and Darryl Strawberry.

In that documentary, Bob Forrest—identified as an addiction specialist—delivers the following, harrowing words on the issue of substance abuse: “In the end, if you don’t realize how $%@! up you are being a drug addict, you’re probably going to keep $%@! up.”

Outside of divorce practice, some of us have lived the terribly sad experience of trying to help someone who succumbs to substance abuse who does not himself/herself come to the realization that Forrest spoke of in Doc and Darryl.

As divorce lawyers, many of us have crossed paths with this phenomenon as well, which often times manifests itself in the form of a client who, despite handwriting on the wall type evidence of a substance abuse problem, remains adamant that “there is nothing wrong with me.”

When children of divorce find themselves in a situation where one, or both parents, suffer from substance abuse problems, trial judges in matrimonial cases are faced with the daunting task of establishing appropriate protocols to ensure that those same children are kept safe.

Such was the case in the matter of SG v. MG, NY Slip Op 51063(U) (Supreme Court, Nassau County, Oct. 5, 2023) (Dane, J.), where the court had to confront how to address a party’s continued use of Adderall in the context of safeguards surrounding access with the parties’ children.

In SG, the parties married in 2006, had three children (born in 2009, 2012 and 2014), and settled their divorce action via stipulation of settlement in September 2019. In June 2021, as part of post-judgment proceedings, the father filed a motion to, inter alia, modify the drug testing provisions in the stipulation with respect to prescribed medication.

At a hearing to address a variety of claims for relief (including a relocation request by the mother, which is not addressed here), the mother testified that the father had overdosed on Adderall and, at her request, the father entered rehab in August 2019.

At “couples therapy” sessions, the mother testified that the father would show up “high,” and in the stipulation, it was agreed that monthly drug testing for a period of two years would be put in place. The mother also testified that the father spent the better part of a decade addicted to Adderall.

After the Sept. 26, 2019 execution of the stipulation, the mother received “clean test results,” however in November 2020 she learned from a Rabbi that the father was using Adderall again. Concerned about the possibility of an overdose, the mother applied to the court for drug testing, and a hair follicle test was ordered.

The father complied with the order, and while he had three negative drug screens in 2021, the father voluntarily chose to restrict his own parenting time and see the children in his car. The mother believed that even after June 2021, the father was still using Adderall.

For his part, the father admitted to overusing Adderall before the parties separated in spring/summer of 2018. He testified that he entered drug rehab in July 2019, and acknowledged turning to alcohol and marijuana to cope with the pain of being separated from his family.

While drug test results in November 2020 were positive for Amphetamines due to the father’s use of Adderall, he “did not classify this as ‘substance abuse’ because Adderall is not an illegal substance”; he testified that his access periods should not have been supervised because the Adderall was “prescribed by his treating health care provider.” While the father acknowledged his continued use of Adderall as prescribed, he denied having substance abuse issues.

That the drug testing provisions in the parties’ stipulation did not expressly mention “Adderall” was of no moment. The court’s decision denying the father’s motion to vacate the “Drug Testing” provision in the stipulation with respect to prescribed medications focused on the testimony and other evidence adduced at the hearing “that the Father has a history of using Adderall … While that may have occurred prior to the execution of the stipulation, the court finds his history germane inasmuch as he seeks to modify the drug testing provisions of the parties’ stipulation.”

The court’s decision then elaborates on the seminal role of courts in matrimonial actions to protect and facilitate the state’s interest in parens patriae—to protect those that cannot protect themselves:

Notably, the father testified that he continues to use Adderall, albeit consistent with how it is prescribed by his treating clinician. However, what shines bright to the court is his continued use of Adderall notwithstanding and irrespective of his prior stint in rehabilitation. The father, therefore, has failed to convince this court that the drug testing parameters of the underlying stipulation should be abated. While the court lauds the father for entering rehabilitation, the court’s duty runs to protect the interests of the children. courts should never lose sight of the state’s interest as parens patriae in protecting the well-being of children, as well as the overwhelming interest in the safety of children … Given the father’s continued use of Adderall, this court must ensure that the father is taking that medication consistent with the parameters of how it is prescribed, and finds that the drug testing provisions of the parties’ stipulation should remain in full force and effect (emphasis added).

The reason that the SG decision is so critical in matrimonial jurisprudence is that it reinforces the essential premise that when it comes to the safety of children of divorce (in fact, the safety of children generally), it is not acceptable to “roll the dice” and “take a chance.” Doing so has the potential to jeopardize the safety of children which is an outcome that no matrimonial lawyer should tolerate.

In matrimonial actions, when it is alleged that one party has a substance abuse problem, the defense of “but it’s prescribed” should not be a “case closed” defense – far from it. As a society, we have borne witness to the immense dangers of misuse and abuse of prescription medications. The court in SG correctly lauded the father’s prior decision to enter rehab, however it also, correctly, took account of the father’s history of substance abuse, and his continued use of a drug that once caused him to overdose.

Divorce lawyers and litigants alike have experienced a realm of outcomes in custody disputes. Some of those outcomes leave us shaking our heads. Others give us faith that our courts do, indeed, protect the best interests of children of divorce. SG is a decision that sensibly and thoughtfully protects the safety of children of divorce. For that, I laud this decision.

"Protecting Children’s Safety: The Divorce Court’s Awesome Power," by Alan R. Feigenbaum was published in the New York Law Journal on November 2, 2023.

Reprinted with permission from the November 2, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.