Family Court and Medical Marijuana

With so many folks, er, "medicating" themselves with prescription pot, you just had to see this one coming: the collision between medical marijuana and the family courts.

A California appeals court has ruled that a medical marijuana using father of a toddler is no longer required to exercise his parenting time under supervision.  The lower court found that father's use of pot placed the child at risk of "serious physical harm or illness".

The family had long been on the radar of Los Angeles County's Department of Children and Family Services.  During their investigation, DCFS interviewed father, a cement mason, who admitted to using medical marijuana for his pain and arthritis, but also stated that he never used marijuana around his toddler son.

DCFS authorized a case in the LA County family court alleging that father's legal use of marijuana rendered him occasionally incapable of  providing care for his then 18-month old child; the family court  agreed.

But not the California Court of Appeals, which held that the DCFS presented a mere scintilla of evidence, relying on inferences that amounted to speculation and conjecture regarding the correlation between the safety of the child and father's pot use.  Further, the intermediate appellate court found that DCFS failed to provide any evidence that father was unable to care for his son due to substance abuse.

The Court of Appeals' opinion is legally significant as it makes a distinction between substance use and abuse, defining the latter pursuant to the DSM-IV-TR, which defines substance abuse as:

[a] maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household); (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use); (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct); and (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights). (See DSM-IV-TR, at p. 199.)

In the California case, the DCFS simply did not make this showing.  In fact, the appeals court noted that the opposite was the case; the father was gainfully employed, had a legitimate reason to use pot, and controlled his use, keeping the substance and his use of it away from his child.

We here at the Law Blogger wonder how long it will take before such a case percolates through the court system here in Michigan, resulting in a  published and thus binding decision.  We have had the occasion to represent parents accused by the other parent of using medical marijuana during their parenting time to the detriment of the children.

In Michigan, the medical marijuana act provides some guidance in this regard:

A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated

This is a drama-laden issue to be sure.  Stay tuned for guaranteed future developments.

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Posted in: California,child custody,family court,medical marijuana,parenting time,supervised parenting time

6 Holiday Tips for Divorced Parents

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households.  Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.


Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.

1. Reduce an alternating holiday schedule to a court order.  It is always best for the children when the parents can agree on a schedule.  Alternating holidays is most common when drafting the parenting schedule.  When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon, and the other  parent for the balance of the day; then the next year, they switch.  This works for Thanksgiving, Christmas, New Year's Day and other holidays.  
2. Discuss the schedule with the children.  One solid co-parenting tactic is for both parents, once an agreement is reached, to communicate the schedule to the children.  This way, the children know in advance what to expect.  This can best be accomplished when both parents commit to rational communication and reasonable compromise for the children's sake.
3. Keep the activities simple.  This tip is particularly essential when the children are relatively young and if the divorce is still fresh.  The wounds of the once-whole family have yet to heal; holidays are particularly painful for both children and parents.  Therefore, it makes sense to tone down the activities and avoid rushing hither and yon during your now-scheduled parenting time.
4. Let your child express her feelings to you.  It is important to allow your children the opportunity to express their feelings of loss and disappointment and for you, as the parent, to validate those feelings.  What the child once experienced as an intact family unit has been fractured by divorce.  Therefore, pretending that everything is fine, or over-scheduling a whirlwind of activities to the point of distraction, will only add to the stress of your holiday parenting time.
5. Involve your extended family.  The more love the child feels during the years immediately following a divorce, the better.  Therefore, schedule some quality family time with members of your extended family.  Certainly, this would be a great opportunity for your children to spend time with their grandparents, aunts, uncles and cousins.  If your extended family is highly dysfunctional then, er, not-so-much.  
6. Avoid including a new "significant other".  This is the last thing you want to do at the holidays; not the time or the place.  Including your "significant other" too soon is a selfish thing to do to your children.  Upon reflection, you would probably agree that you would be doing that for yourself, certainly not for your children.  Children of divorce already struggle with guilt, a sense of loss, and insecurity.  They often perceive the introduction of a stranger, especially one that is close and intimate with their parent, as a threat, not a benefit from their parents' divorce.

Of course, the above holiday parenting tips must be adjusted to be age-appropriate.  There is no one-size-fits-all approach to this touchy subject.

Finally, a positive parental attitude over the holidays does wonders for a child's comfort and confidence.  Be the adult, not the child.

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Posted in: divorce,divorce lawyer,parenting schedule,parenting time

Child's Aging Held to be Sufficient Change of Circumstance to Justify Parenting-Time Modification

Very recently, the Michigan Court of Appeals published their decision in the parenting time modification case of Shade v Wright.  That case, and its effect on our "family law" jurisprudence, is the subject of our fellow Oakland County law blogger, Cameron Goulding, Esq.


Cameron produces the North Oakland Divorce Blog.  This post is his original content; thanks Cam.


Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things. 

There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody. 

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue. 

In the Shade v Wright case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Shade v Wright is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.


Cameron's email: goulding@camerongoulding.com

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Posted in: Cameron Goulding,custody,divorce,lawyer,Michigan Court of Appeals,North Oakland Divorce Blog,parenting time,Wright v Shade

Custody and the 100-Mile Rule

The Michigan Legislature long-ago codified the rules of divorce in the Child Custody Act. One of the provisions in the Act addresses when one parent proposes to move:

"a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued."

A recent published (thus binding) decision of the Michigan Court of Appeals provides guidance as to how those 100-miles are calculated.

In Bowers -v- VanderMuellen-Bowers, the parents had joint legal custody of their son. Father, who had been awarded so-called "physical custody", wanted to move from Big Rapids to Byron, Michigan. The distance was very close to 100-miles.

The lower court adopted a "radial-miles" calculation, rather than using "road-miles" as the Mother asserted. The radial-mile method of calculation involves a simple calculation using a ruler and a map to connect two points, "as the crow flies"; not as a vehicle would travel on actual roads. In the Bowers case, the distance would be more than 100-miles if actual road-miles were calculated, and the move could have been disallowed by the family court judge.

In affirming the lower court's radial-miles decision, the Court of Appeals borrowed analysis from a 2007 Michigan Supreme Court case interpreting the 20-mile restriction of a public employee's residence in the Public Officers & Employees Act. Therefore, Michigan Courts do not calculate miles the way they are calculated by Google Maps or Mapquest.

If you have a case that involves a proposed move of your child which you do not think is in the best interests of the minor child, contact our office to discuss your options.

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Posted in: 100-mile rule,change of domicile,custody,parenting time