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How using marijuana can have an effect on a child custody case in Texas

Child custody decisions hinge on a determination of what is in the best interest of your child. If you are a known user of marijuana your use of the drug will be viewed in terms of how often you partake in front of your child, how old your child is and what effect your drug use has on your child.

It is almost impossible to argue that using marijuana would not have an effect in some way on your ability to parent your child. I don’t say this an advocate for or against the use of the drug, just as a parent and attorney who has represented clients who use marijuana. If your plan is to argue that marijuana is nowhere near as dangerous to your body or to your family as other drugs then you ought to reconsider that position because based on my experiences it is not going to be a winning argument for you.

Courts do not relish the opportunity to remove visitation privileges from a parent with their child, but drug use is an instance where this is done with regularity. In extreme instances your parental rights may even be terminated against your will if the drug use is severe and threatens the well being of your child. In any event, the extent to which you will be allowed visitation with your child depends in large part on the circumstances surrounding your use of marijuana.

The more things change, the more they stay the same

Increasingly, states are decriminalizing marijuana and allowing people to possess small amounts of the drug for personal use. On the federal level marijuana possession is still a crime and any use of the drug is barred by federal law. Texas has not decriminalized marijuana and most family court judges treat any sort of drug use as a reason to severely restrict visitation for you with your child.

The bottom line is that your usage of marijuana is seen as a way that you are exposing your child to an unreasonable threat of harm. Child Protective Services (CPS) may even become involved as drug use is often seen as a form of child neglect. You have a duty to protect your child and despite what you believe, a judge is likely to find that your drug usage places an undue amount of potential harm on your child.

All in all, how your case turns out will depend in large part to the individual circumstances of your case. The extent of your drug use, and how much of it has been in front of your child or has directly/indirectly affected him or her will be examined by the judge. Using marijuana in front of your child is a huge red flag to most judges. The fact remains that when you use marijuana your senses are altered and you are not able to protect your child as well or act as quickly should the need to arise. If your child is young you could potentially leave your child vulnerable to finding and ingesting the drugs. In the same way your child could get into untold other household temptations like cleaning supplies, open electrical outlets or sharp objects like knives while you are utilizing marijuana.

Whether or not actual harm occurred to your child, your marijuana use will be judged harshly

You may be in a position to tell a judge that despite your drug use your child has never been injured or directly harmed as a result. I have had a client tell a judge that because she smokes marijuana after the kids go to bed that there is no way her children could have been harmed as a result. This is the kind of logic that most judges are irritated to hear and will not in all likelihood help your case.

Suppose that you were smoking and you fell asleep in your chair. A lit cigarette could catch your clothing or other items on fire thus leading to an injury to yourself. If you are your child’s only caretaker this puts you in a position that you are home alone with a child and have injured yourself due to your having used marijuana. Likewise, if your using marijuana renders you unable to protect your child then you would be unable to protect them from intruders or other people who should not be in your home.

The big question is whether or not you neglected your child by your having used marijuana. If you have been found to be neglectful not only will you not fare well in your child custody case, but CPS will be contacted and an investigation will be taken up. In these situations it is not uncommon to have a parent’s parental rights be put under the microscope with an end result being that your rights could be terminated.

If you are a habitual marijuana smoker then you will likely fail a drug test that will be administered upon you. A positive test means that you will have severely curtailed your own visitation with your child. You and the child’s other parent will have to decide upon a third party who can supervise your visitation periods with your child. On the other hand, if you only used marijuana once then it is possible that you will pass a drug test depending upon how long ago you used the drug. In this event you could get a stern warning from the judge but may escape without punishment.

What if your significant other is the marijuana user? Does that make a difference?

In many ways it does not matter if you are the person who uses marijuana or if your spouse or significant other is the person using the drug. For instance, I had a recent case where a client’s boyfriend used marijuana to treat the pain he had in relation to a failed back surgery. The judge admonished the client for allowing a man who uses drugs into her home. This was despite a reasonable explanation for the drug use as well as the children having never been exposed to his having done drugs.

If you make a conscious decision to bring a person into your child’s life you are placing the safety of your child in their hands. The decision then to use drugs is a sign that the safety of your child may not be at the forefront of their minds. Think about any other aspect of your life that may be viewed within the lens of a person who uses drugs. In the situation I am discussing from my recent case, this family actually had an infestation of fleas in the home and those fleas bit the children. Our client was thus forced to present a case that centered around drug use and fleas. This is an uphill battle for any client to undertake.

Ask yourself does your use of marijuana benefit your child?

The simple question is whether or not your using an illegal drug benefits or hurts your child in some way. There are no benefits that using drugs have on your children that I am aware of. There are many negative consequences that are inherent in drug use and I have outlined many of them for you in today’s blog post. Choose wisely on whether or not you want to bring a person into your child’s life who uses drugs, as well.

Questions about the effect of drug use on your child custody case? Contact the Law Office of Bryan Fagan, PLLC today

No two family law cases are created equal and if you find yourself with questions about an unorthodox family law situation like one that we described in this blog post please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys work tirelessly on behalf of our clients to achieve their goals. We offer free of charge consultations for folks like you who would like to meet with an attorney on our team to discuss your case and the services that we can provide to you as a client.


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