HOW WILL MARIJUANA USE AFFECT MY CUSTODY RIGHTS?

The answer is, it depends.  The court will analyze whether your involvement poses a threat to your children.  If the Judge decides it does, you could be deemed “abusive,” and your custody rights could be limited or terminated.  Such a finding could also trigger unwanted attention from the Department of Children and Family Services (“DCFS”) or the District Attorney’s Office.  While Prop 64, which passed last November, gives pot using parents some additional legal protections, how much is unclear.  This confusion will be addressed in a future blog.  However, on a personal level, conservative Judges tend to have far less patience for parental marijuana use than liberal ones.  Your case will be assigned to a courtroom at random.  Do you really want to keep or lose your custody rights based on blind luck?

For patients, growers, delivery services, retailers and their spouses who worry that disclosures in family court might come back to haunt them, there is another way.  The parents can mutually agree on their custody arrangement.

Mediation is a negotiation process, facilitated by a middle man (usually an attorney), that helps the parties settle their differences.  With few exceptions, the proceedings are confidential and the mediator cannot testify against either side.  Once the parties come to terms, they draft and sign a ‘Settlement Agreement.’  It subsequently becomes the final Order.  Since the custody arrangement is decided by the parties instead of the court, the Judge’s prejudices against cannabis, if any, never matter.

I often get the question:  “Why should the non-user spouse agree to mediate?  The user spouse’s drug use around the children could convince the Judge to give the non-user spouse full custody.  The non-user spouse will never have that much leverage in mediation.”  Why?  Because this strategy can backfire.  The Judge could also find that the non-user spouse knew the user spouse was putting the children in danger, but failed to protect them.  If that happens, the non-user spouse could be deemed a complicit co-abuser.  Now, both parents would be considered unfit.  That’s a pretty substantial risk.

Another major benefit to mediation:  It can be cheaper and faster than court, even in highly contentious situations. Roughly 95% of all cases settle.  Why pay enormous attorney’s fees to prepare for a trial that’s almost certain not to occur?   Mediate first, and put the savings in your children’s college fund.

Attorney Michael Heicklen is licensed to practice law in California and has over 20 years of experience as a family attorney and mediator. In 1997, he was part of a three attorney team that overturned 200 years of forfeiture history at the US Supreme Court.  This win forced the Clinton Administration to change our nation’s applicable laws.  He can be reached at (818) 907-7771 or emailed at heicklenlaw@gmail.com.

This article is solely directed at California readers.  It is meant to convey general information and does not constitute legal advice.  If you have any questions about these issues, you should consult with a family lawyer.