Child Custody – What information will a judge consider? Marijuana Use.

In my last post in this series, I described how one judge dealt with the relocation of one parent in a child custody trial. In this post in the same series, I’ll discuss how that judge treated marijuana use by both parents.

In this case, one parent had used marijuana one time within the last three years, and during the child’s life. The other parent had used marijuana in high school (approximately 8 years earlier). There was some evidence that both may have used marijuana more recently, but nothing conclusive. Neither parent has been arrested or charged with a drug offense, and there was no evidence that either party was a regular user.

The judge did not seem particularly upset by either parent’s marijuana usage. The judge did specifically order both parties to refrain from using illegal drugs in the future. But, the judge did not make drug assessments or drug testing a part of the order.

This result suggests that sporadic or isolated marijuana use by a parent may not be a huge factor in custody determinations. If the use is infrequent and the child is not present, then marijuana usage may not severely impair a parent’s efforts to obtain custody or visitation of a child.

However, regular or frequent use of marijuana is likely to be a factor in custody determinations. There is no definitive way of knowing what level of marijuana use will trigger a serious concern for any particular judge. So, the safest course is always to refrain from any marijuana use so that there is no issue in the custody action. And, it is safe to assume that “harder” drug use will create a serious problem for parents seeking custody or visitation of a child.

Lesson: I am frequently asked by clients whether their use of marijuana will prevent them from gaining visitation or custody of their children. The outcome in this particular case indicates that the less frequent the use, the better, and the longer ago the use, the better. But, a one time use or very infrequent use will not necessarily prevent a parent from gaining visitation or custody of a child.

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Child Custody – What information will a judge consider?

One of the most common questions that I get asked by clients and other lawyers in child custody matters is “What do you think a judge would think about ‘x’?”

In an effort to show you how judges feel about particular issues, I will let you know about cases that I have dealt with, and how particular issues were treated by the judge in that case. Keep in mind that all judges are different and each judge brings his or her own background and perspective to every case.

That being said, there were four interesting issues in one of my recent custody trials. First, my client was relocating to his hometown out of state, and wanted to take the child. Secondly, both parents had used marijuana in the past. Thirdly, one of the parents has been diagnosed with a mental illness. Lastly, one of the parents allowed the child to ride a 4 wheeler and a motorcycle at the age of 2.

I will address each of those issues, the outcomes and the lesson to be learned in my next posts. First, I’ll address the relocation issue.

Relocation issue: In this case, the judge did not allow the relocating parent to take the child with them. The new location offered a strong family support network and the child had spent months of his life in the parent’s home town with grandparents. Child care would have been provided by grandparents in the new location. But, the judge seemed to adopt the “if it ain’t broke, don’t fix it” approach. Even though the parent in North Carolina was relying solely on neighbors and friends for child care, there was some evidence that the child was doing well in North Carolina. So, even though the relocation provided more family support, the judge seemed to favor the status quo.

Lesson
: The law requires the judge to do whatever is in the “best interests” of the child in custody cases. It is difficult to convince a judge to allow one parent to move away with the child. It is not impossible, but you may need evidence that the child’s current location is bad for the child in some way, and that the new location will help solve those problems. Unless there is a big difference between the proposed location and the current location, convincing a judge to relocate the child is an uphill battle. The lesson for me as an attorney is that judges will frequently apply a “if it ain’t broke, don’t fix it” approach in these cases, even if a relocation can provide a better situation for the child.

Next week I will address the judge’s handling of the marijuana use by each parent. Until then, have a Happy New Year!

PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.


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PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.

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