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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience:  Attorney experienced in all aspects of family law
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I share 50/50 custody of my 7 year old daughter with my ex

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I share 50/50 custody of my 7 year old daughter with my ex wife. In the past, I've known firsthand that my ex abused prescription pain medicine (Morphine, Oxycontin) and cocaine, but it was never documented in court. She takes high doses of Adderall. It was why we got a divorce. When we were in Family court deciding custody, she appeared to be clean and making steps to live a healthier life. She is a high functioning addict who manipulates the system. She has had back surgery but still claims she has a bad back. What is suspicious is she wears high heel shoes daily and does back flips on trampolines. She herself admitted that if her doctors saw her doing this they would not give her any pain meds. I did confront her last month because she appeared to be under the influence and was visibly shaking. I asked her if she was using again and it didn't go over very well. I spoke with her parents but they were no help. My ex bought our daughter an ipad and programmed the ipad's Messenger with her telephone number. My daughter brought to my attention that all of my ex's texts come through for my daughter to see. This includes naked pictures she sends to several men and they reciprocate with their own nude photos. I immediately took the ipad to remove these photos and found more troubling evidence. She is texting to these other men about being high and taking drugs, and they talk about meeting dealers and getting drugs from each other. One guy has been going to her house late at night to get prescription morphine from her when my daughter is there. I'm beside myself. I haven't alerted my ex to knowing these facts....yet. I need advice to how to handle this. I would like to turn over the ipad to child services in hopes to have her drug tested. The ipad is not password XXXXX Am I allowed to do this?
Submitted: 11 months ago.
Category: Family Law
Expert:  Brandon M. replied 11 months ago.

Brandon M. :

Hello there.

Brandon M. :

My name is Brandon.

Brandon M. :

How old is your daughter?

Brandon M. :

7 years old, is that correct

Brandon M. :

?

Customer: Yes
Brandon M. :

I apologize... my "enter" key was sticking a bit. I believe that the issue has resolved. I ask this question just so I can understand the dynamic a bit better.

Brandon M. :

Did your daughter bring the photos to your attention, or merely that the texts could be viewed on the ipad?

Brandon M. :

In other words, did she show you that you could view the messages and you thought "let's take a look what's inside", or did show you the actual content and you thought "there's a problem here"?

Customer: My daughter brought to my attention that a photo of a penis popped up during one of her games. I took the iPad to find that it came from messenger. I then read more texts.
Customer: I have not allowed my daughter use her iPad since and have been monitoring the texts. My daughter is with her now.
Brandon M. :

That must have been mortifying. I'm so sorry. As a parent, I can understand and I think that most people would do the same thing out of concern for their child. However, it potentially creates an additional legal issue if you actually went into the texts to gather additional information. Please allow me to explain. Basically, there is a right to privacy in California, so it is technically unlawful to go into the text messages of your child's other parent without her permission in most situations. If the child accidentally goes in and pulls up a picture of a penis before showing it to you, that's clearly beyond your control and there would be no illegality there. However, once you enter into the private messenger service, that's basically where the line is crossed. It would be like walking through the door of someone's house--if it happens by accident, it's not a problem, but you generally can't go in without permission of the owner, even if the door isn't locked.

All of that said, no responsible law enforcement officer would be interested in enforcing the law against someone just acting reasonably to protect their child, and no jury would like award the "victim" of such an intrusion anything for damages. The privacy laws are not designed to punish a parent for protecting their child--it would be an abuse of discretion, and the system takes those things into consideration...

Brandon M. :

So I'm bringing this to your attention first because the nuances of every situation are different, so this information should not be relied upon as complete or advice: invading someone's privacy can be a civil and criminal offense, and it is generally an invasion of privacy to go into someone else's text messages without their permission, but the context of such an invasion is considered and you have to do what you have to do to protect your child.

Now, with that said, although law enforcement (police and/or child protective services) couldn't make such an intrusion themselves, nor could such evidence be used if they made the intrusion themselves, they CAN use the evidence and rely upon it if a private party makes the intrusion.

Customer: How do you recommend getting her drug tested?
Brandon M. :

If you're not interested in taking this to the police or CPS, the only way is by filing for a custody order modification that includes drug testing for the mother. May I safely assume that she wouldn't consent to such an order?

Brandon M. :

Assuming that she would not agree to the testing, there has to be a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent. This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance. Basically, you have to prove that there is a problem. You would file for a modified custody order and present whatever evidence you have.

Brandon M. :

If she would agree to the testing, you would still file for a modified custody order, but you wouldn't have to worry about evidence.

Customer: She will not take a drug test willingly. The problem is she has had no convictions. I call it luck. I am very concerned about her. She weighs 100 lbs. and looks horrible and her former friends have called me worried about her. She will not admit to having a problem. I feel I have no choice but to contact CPS. I just don't know what to say to them.
Brandon M. :

CPS has to investigate every allegation of child abuse or neglect, even anonymous allegations, so getting them to investigate isn't a problem. However, CPS isn't going to make her drug test without corroborating evidence of drug abuse, so you basically have to make a decision. You can present to them evidence that the illegal drug use is occurring, or you can report what you know and hope that their investigation of this "high functioning addict who manipulates the system" is enough to find the problem without your evidence.

Brandon M. :

Does that make sense?

Customer: Yes. Thank you. I will call CPS and ask her former friend to call too. Maybe that would help collaborate my story.
Brandon M. :

Great. Have all of these answers been clear and helpful?

Customer: Yes, thank you
Brandon M. :

Super. Any other questions?

Customer: No thank you.
Brandon M. :

Best of luck to you. Take care.

Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience: Attorney experienced in all aspects of family law
Brandon M. and 7 other Family Law Specialists are ready to help you
Expert:  Brandon M. replied 11 months ago.
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