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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102506
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have a quick question please. My ex-husband has a Medical

Customer Question

Hello! i have a quick question please.
My ex-husband has a Medical Marijuana Card for last 2 years. Before that he was using pot every day illegal for over 10 years or more. One of my child at age 7 was positive for marijuana (I believe as a second hand smoker) twice already. DCS (child protective service ) was involved for about 3 month now, but they did not find anything, because he was playing his games as a good father, who keeps his pot away from children, and blamed everything on me. DCS did not find that i am the one who got a child to danger.
My ex has a tons of money, and he has a power, so DCS does not treat this case properly.
Now my ex is going to file with a court Modification of parenting time and he asks for sole custody.
My question is:
Is it possible that he can get sole custody and more time with the children while he is under pot? Because Marijuana is legal in Arizona, but it is treats as heroin, and illegal by Federal law.
For now we have join custody, and he has 4 days less then i have parenting time, but for him it is not about the children, it is how to hurt me as a good mother, who does not use alcohol or pot.
Of course i have an attorney, but would like to get second opinion on that please.
Thank you
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am very sorry to hear about this situation.

Is it possible that he can get sole custody and more time with the children while he is under pot?

It is possible, but just because it is possible does not mean he will get what he wants.

The Court decides on custody based on the rule of thumb of "best interest of the child." This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc. The courts generally do not like to split the custody 50/50 since this is hard on the child unless both parents agree to this.

Once custody is set, it can only be modified if the filing party can prove that (a) there has been a substantial change in circumstances and (b) the modification would be in the best interest of the child.

He is filing for sole custody, you say, meaning that he wants to have visitation and for you not to see the child? Unlikely. Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation may be granted by the Court.

So far, there has been no proven evidence/facts from what you have told me that states that someone in his situation can show that you are a danger to the child. Ergo, chances of sole custody is unlikely.

To recap:

TO MODIFY FOR HIM TO BE CUSTODIAN, he would have to show (a) there has been a substantial change in circumstances and (b) the modification would be in the best interest of the child.

IN THE UNLIKELY SCENARIO THAT HE COURT APPROVES FOR HIM TO BE CUSTODIAN, VISITATION CAN ONLY BE CUT IF he can show that you are a danger to the child.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!