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November 11, 2010 12:01 PM Subscribe
Legal Resources for SO (and me) to help in a defense. Short version first, then details if one wants/needs them.
I am posting this question for my SO (and as his live-in partner, myself) who is in need of resources that can help with a legal defense. I’ll try to be as concise as possible in my explanation. Please understand that we are not seeking opinions or judgments on the situation, just avenues to explore and potential resources to help us in preparing the best defense possible. I was initially hesitant to put this on MeFi because I want to avoid derails and opinions on what is likely a controversial topic. However, in my research on similar threads, I have seen how the members here can be a wonderful and valuable means of help. With that said, I’m putting my tl;dr at the beginning.
tl;dr: Basically I’m asking for help in locating resources in New York State that may be able to help with custody/visitation rights that involves medicinal marijuana use by one parent. We’ve contacted the national and local offices of NORML as well, but specifically are seeking legal counsel that has experience with custody issues in this sense. Cost is also a big factor, as SO must now use funds earmarked for his yearly medical care.
Details: We live in New York State (Westchester County). SO has been divorced for 4 years. Shared custody of 3 children (ages 14, 10 and 9). Children’s mother lives in same town, about 2 miles away. Past relations between SO and his ex have been tenuous and acrimonious until this year. SO has an extraordinarily wonderful relationship with his kids. I’ve never seen someone so devoted to fatherhood as he is. SO and I moved into our house in June of this year, and have happily adjusted to this “immediate blending of families” (I have a 12-year old son from my previous marriage who lives with us part time as well). Everyone gets along very well and life has been sweetly hectic since moving in.
Eleven years ago, SO was diagnosed with ulcerative colitis. He has been hospitalized twice in that time for flare-ups, and continues to take maintenance meds for his condition. SO researched supplemental treatments and, based on info provided by his physician, determined that marijuana was worth a try. In brief, it has worked wonders on the pain, nausea and associated complications of UC. Prior to this, he had tried diet, other meds, homeopathic remedies, yoga, etc. Cannabis has proven to be the best way for him to alleviate the pain and digestive distresses that this disease causes on a daily basis. Usage is daily, except for when his children are here (3 hours 2 evenings a week and full-time every other weekend). When kids are here, there is no use and he just endures the symptoms. Sometimes they are minimal, other times it can cause significant distress, but he just bucks up and deals as best he can. His insurance coverage is for catastrophic only, as he is a self-employed carpenter. He does go for yearly colonoscopies and medication review, which is an out-of-pocket expense that runs about $2k per year (excluding prescription meds).
SO’s ex has twice taken him to court, alleging marijuana use and “neglect of the children”. The judge presiding refused to allow SO’s attorney to introduce documents pertaining to his health issues as a defense for the usage. Judge simply said, “If you test drug-free for 90 days, you can have your unsupervised visitation back”. During this time, his visitation with his kids was limited to supervised visits at the local YMCA for 90 minutes a week. Judge also ordered that SO is not allowed to use marijuana at any time, regardless of the presence/absence of the children, “until as such time marijuana use becomes legal”. Basically, he cannot use ever again. SOs attorney tried to object to this, but was harshly denied by the judge. We are unsure if this is even legal, but the judge said, “it’s MY courtroom and I don’t care about Mr. Xs health issues”.
Last week, SO received another Order to Show Cause, calling him to appear again. We were caught off guard because relations with his ex had been going very well, to the point where she and I would chat briefly during pick-ups and drop offs, and relay anecdotes regarding our kids weekends, school stuff, etc. When he read me the accusations in the OSC, I realized that they were entirely made up. She referenced a particular weekend (by date) that the kids returned home unfed, unbathed and ill. The problem is, I live here too, and can assure that we fed the kids, made sure they took showers and they were not the least bit sick when they went home that Sunday. It also explains the perplexing surprise visit she made three days before we received the order, under the pretense of picking up one of the kid’s schoolbooks. I let her in the house while I looked for the mystery book, not even thinking that she might be doing reconnaisence
The OSC also states that SO has returned to marijuana use and this has endangered the children. Yes, he has used, but as said before, never with the children here and only to help alleviate symptoms. He will have to be tested and will test positive. Past experience says that the judge will see that he tested positive and that will be all that needs to be discussed. SO will lose visitation until he tests positive again. And so it goes on and on…
The kids know about this, as the ex sat them down and asked them about their father’s behavior, and said that they were not going to be able to see him because she was taking him to court again. Both SO and the kids are visibly distressed and heartbroken over this, and it is taking its toll on all of them. To keep the kids from their dad is so damaging to them, and SO cannot understand what it is that is driving the ex to do this, other than spite and control. Interestingly, ex used to smoke with him when they were married and he was first using after his diagnosis.
SOs current attorney is, frankly, not aggressive enough to be able to fight the ex’s highly paid attorney (who is also one of the judge’s cronies). SO does not have the means to fund an expensive defense, as he still owes his attorney $10k from the last go-round a year ago. Besides, the court order says that the same judge will oversee this hearing, and a change of judge is impossible. So essentially, SO is fucked unless we can provide a defense that will be taken into account appropriately
I appreciate any leads or resources that can be provided. Please memail me if you want/need more details. Thanks, everyone.
I am posting this question for my SO (and as his live-in partner, myself) who is in need of resources that can help with a legal defense. I’ll try to be as concise as possible in my explanation. Please understand that we are not seeking opinions or judgments on the situation, just avenues to explore and potential resources to help us in preparing the best defense possible. I was initially hesitant to put this on MeFi because I want to avoid derails and opinions on what is likely a controversial topic. However, in my research on similar threads, I have seen how the members here can be a wonderful and valuable means of help. With that said, I’m putting my tl;dr at the beginning.
tl;dr: Basically I’m asking for help in locating resources in New York State that may be able to help with custody/visitation rights that involves medicinal marijuana use by one parent. We’ve contacted the national and local offices of NORML as well, but specifically are seeking legal counsel that has experience with custody issues in this sense. Cost is also a big factor, as SO must now use funds earmarked for his yearly medical care.
Details: We live in New York State (Westchester County). SO has been divorced for 4 years. Shared custody of 3 children (ages 14, 10 and 9). Children’s mother lives in same town, about 2 miles away. Past relations between SO and his ex have been tenuous and acrimonious until this year. SO has an extraordinarily wonderful relationship with his kids. I’ve never seen someone so devoted to fatherhood as he is. SO and I moved into our house in June of this year, and have happily adjusted to this “immediate blending of families” (I have a 12-year old son from my previous marriage who lives with us part time as well). Everyone gets along very well and life has been sweetly hectic since moving in.
Eleven years ago, SO was diagnosed with ulcerative colitis. He has been hospitalized twice in that time for flare-ups, and continues to take maintenance meds for his condition. SO researched supplemental treatments and, based on info provided by his physician, determined that marijuana was worth a try. In brief, it has worked wonders on the pain, nausea and associated complications of UC. Prior to this, he had tried diet, other meds, homeopathic remedies, yoga, etc. Cannabis has proven to be the best way for him to alleviate the pain and digestive distresses that this disease causes on a daily basis. Usage is daily, except for when his children are here (3 hours 2 evenings a week and full-time every other weekend). When kids are here, there is no use and he just endures the symptoms. Sometimes they are minimal, other times it can cause significant distress, but he just bucks up and deals as best he can. His insurance coverage is for catastrophic only, as he is a self-employed carpenter. He does go for yearly colonoscopies and medication review, which is an out-of-pocket expense that runs about $2k per year (excluding prescription meds).
SO’s ex has twice taken him to court, alleging marijuana use and “neglect of the children”. The judge presiding refused to allow SO’s attorney to introduce documents pertaining to his health issues as a defense for the usage. Judge simply said, “If you test drug-free for 90 days, you can have your unsupervised visitation back”. During this time, his visitation with his kids was limited to supervised visits at the local YMCA for 90 minutes a week. Judge also ordered that SO is not allowed to use marijuana at any time, regardless of the presence/absence of the children, “until as such time marijuana use becomes legal”. Basically, he cannot use ever again. SOs attorney tried to object to this, but was harshly denied by the judge. We are unsure if this is even legal, but the judge said, “it’s MY courtroom and I don’t care about Mr. Xs health issues”.
Last week, SO received another Order to Show Cause, calling him to appear again. We were caught off guard because relations with his ex had been going very well, to the point where she and I would chat briefly during pick-ups and drop offs, and relay anecdotes regarding our kids weekends, school stuff, etc. When he read me the accusations in the OSC, I realized that they were entirely made up. She referenced a particular weekend (by date) that the kids returned home unfed, unbathed and ill. The problem is, I live here too, and can assure that we fed the kids, made sure they took showers and they were not the least bit sick when they went home that Sunday. It also explains the perplexing surprise visit she made three days before we received the order, under the pretense of picking up one of the kid’s schoolbooks. I let her in the house while I looked for the mystery book, not even thinking that she might be doing reconnaisence
The OSC also states that SO has returned to marijuana use and this has endangered the children. Yes, he has used, but as said before, never with the children here and only to help alleviate symptoms. He will have to be tested and will test positive. Past experience says that the judge will see that he tested positive and that will be all that needs to be discussed. SO will lose visitation until he tests positive again. And so it goes on and on…
The kids know about this, as the ex sat them down and asked them about their father’s behavior, and said that they were not going to be able to see him because she was taking him to court again. Both SO and the kids are visibly distressed and heartbroken over this, and it is taking its toll on all of them. To keep the kids from their dad is so damaging to them, and SO cannot understand what it is that is driving the ex to do this, other than spite and control. Interestingly, ex used to smoke with him when they were married and he was first using after his diagnosis.
SOs current attorney is, frankly, not aggressive enough to be able to fight the ex’s highly paid attorney (who is also one of the judge’s cronies). SO does not have the means to fund an expensive defense, as he still owes his attorney $10k from the last go-round a year ago. Besides, the court order says that the same judge will oversee this hearing, and a change of judge is impossible. So essentially, SO is fucked unless we can provide a defense that will be taken into account appropriately
I appreciate any leads or resources that can be provided. Please memail me if you want/need more details. Thanks, everyone.
This post was deleted for the following reason: poster's request -- jessamyn
IANAL. IANA Expert on Any Subjects Except Perhaps Spreadsheets and Risotto.
However.
If your SO chooses to take a stand on the marijuana issue, I am pretty damned certain he will lose. It sucks, and it's unfair and ridiculous, but that's the way it is. Unless you have a LOT of cash, situations like this are largely dependent on the judge you've drawn. Shit, even if you DO have a lot of cash, a lot depends on the judge. And, well... the majority of judges aren't super-understanding when it comes to drug use. Even fewer of them are understanding when it comes to drug use in a situation involving children. Even FEWER of them would be willing to risk the shitstorm which would come if they elected to set precedent (AFAIK, there is no existing caselaw for this sort of stuff - maybe in CA?) by showing some leniency in a case involving drugs and children.
I'd never out-and-out advise someone to break the lawn and juke the system. However, if I were your SO, my efforts would be focused more on ways to pass those drug tests than to shake up existing custody law. There ARE ways.
Good luck... I know this has to be frustrating and heartbreaking as hell for you guys.
posted by julthumbscrew at 12:19 PM on November 11, 2010 [1 favorite]
However.
If your SO chooses to take a stand on the marijuana issue, I am pretty damned certain he will lose. It sucks, and it's unfair and ridiculous, but that's the way it is. Unless you have a LOT of cash, situations like this are largely dependent on the judge you've drawn. Shit, even if you DO have a lot of cash, a lot depends on the judge. And, well... the majority of judges aren't super-understanding when it comes to drug use. Even fewer of them are understanding when it comes to drug use in a situation involving children. Even FEWER of them would be willing to risk the shitstorm which would come if they elected to set precedent (AFAIK, there is no existing caselaw for this sort of stuff - maybe in CA?) by showing some leniency in a case involving drugs and children.
I'd never out-and-out advise someone to break the lawn and juke the system. However, if I were your SO, my efforts would be focused more on ways to pass those drug tests than to shake up existing custody law. There ARE ways.
Good luck... I know this has to be frustrating and heartbreaking as hell for you guys.
posted by julthumbscrew at 12:19 PM on November 11, 2010 [1 favorite]
Given that your SO has an attorney and the judge has been very clear on the matter, I doubt there's much you can do in terms of fighting this in court. There should be an appeal process, but that will take time... and then you'd need appellate judges to go along with the theory that SO should get to present this medical information, and then if it happens, he still will have to prove whatever the custody criteria are -- probably something like the kids' best interests. I don't see how hiring a different, even more "aggressive," attorney is going to do much good.
How about something like family court mediation? SO's ex is being a bitch about this, but still, if it were me, I'd work on trying to resolve the problems with her enough that they can amicably get along in regard to raising their kids.
posted by J. Wilson at 2:00 PM on November 11, 2010
How about something like family court mediation? SO's ex is being a bitch about this, but still, if it were me, I'd work on trying to resolve the problems with her enough that they can amicably get along in regard to raising their kids.
posted by J. Wilson at 2:00 PM on November 11, 2010
SOs current attorney is, frankly, not aggressive enough to be able to fight the ex’s highly paid attorney (who is also one of the judge’s cronies). SO does not have the means to fund an expensive defense, as he still owes his attorney $10k from the last go-round a year ago. Besides, the court order says that the same judge will oversee this hearing, and a change of judge is impossible. So essentially, SO is fucked unless we can provide a defense that will be taken into account appropriately
There are several problems with your question:
(1) Your SO has an attorney. You do not need to be preparing a "defense" for your SO. That's his attorney's job, and your efforts to prepare a "defense" for behavior the judge has already said he will not tolerate will not help at all. In the eyes of the judge, your SO is an illegal drug user, end of story. There are lots of reasons why a judge does not want to open the door to "medical" defenses of marijuana use.
(2) You say your SO's attorney is "not aggressive enough to be able to fight the ex’s highly paid attorney (who is also one of the judge’s cronies)." With all due respect, the fact that you are asking for legal advice on Metafilter shows you are simply not qualified to decide whether the attorney is "aggressive enough." What a layperson thinks is "aggressive enough" is, more often than not, cheesy, over-the-top, and obnoxious. You said in your question that your SO's attorney tried to present the medical defense, and also that the SO's attorney objected to the judge's absolute prohibition on future marijuana use. What more do you want the attorney to do? Back off and let him or her do the job they've been hired to do. And how do you know who the judge's "cronies" are?
Your SO may not get what he wants here. The attorney sounds like he's done the best he could do, but the judge wasn't having it. That's the way the legal system works.
posted by jayder at 2:08 PM on November 11, 2010 [2 favorites]
There are several problems with your question:
(1) Your SO has an attorney. You do not need to be preparing a "defense" for your SO. That's his attorney's job, and your efforts to prepare a "defense" for behavior the judge has already said he will not tolerate will not help at all. In the eyes of the judge, your SO is an illegal drug user, end of story. There are lots of reasons why a judge does not want to open the door to "medical" defenses of marijuana use.
(2) You say your SO's attorney is "not aggressive enough to be able to fight the ex’s highly paid attorney (who is also one of the judge’s cronies)." With all due respect, the fact that you are asking for legal advice on Metafilter shows you are simply not qualified to decide whether the attorney is "aggressive enough." What a layperson thinks is "aggressive enough" is, more often than not, cheesy, over-the-top, and obnoxious. You said in your question that your SO's attorney tried to present the medical defense, and also that the SO's attorney objected to the judge's absolute prohibition on future marijuana use. What more do you want the attorney to do? Back off and let him or her do the job they've been hired to do. And how do you know who the judge's "cronies" are?
Your SO may not get what he wants here. The attorney sounds like he's done the best he could do, but the judge wasn't having it. That's the way the legal system works.
posted by jayder at 2:08 PM on November 11, 2010 [2 favorites]
IANAL by any stretch of the imagination, but something to consider: Wouldn't the 14 yr old (at least...don't know about the 10 yr old) be considered old enough to give some sort of testimony to how things go when they visit your SO's house? I've known of custody cases where the judge will interview the teenaged children (most likely in his chambers, not in front of parents) to see what their preferences are regarding who to live with, etc. I'm NOT saying that the teenager should talk about the marijuana stuff, but I'm sure he/she could shed light on the weekend they were allegedly "unfed, unbathed, and ill."
You can't predict what teenagers will say, so it may work against you. However, it's something to consider.
posted by MultiFaceted at 2:58 PM on November 11, 2010
You can't predict what teenagers will say, so it may work against you. However, it's something to consider.
posted by MultiFaceted at 2:58 PM on November 11, 2010
You need to anonymize or remove this question pronto. Also, the judge was correct when he said it's his courtroom--he makes the decisions. I'm not sure what you think a more aggressive attorney would be able to do in front of the same judge. It sucks, but that's the way the legal system works.
posted by Mavri at 3:19 PM on November 11, 2010
posted by Mavri at 3:19 PM on November 11, 2010
am i missing something - new york doesn't have medical marijuana laws, yeah? so the judge is absolutely correct, legally speaking, that no matter what your SO's condition, the state of new york doesn't recognize his treatment and he is breaking the law.
until the law changes, i think your SO needs to either actually give up weed and suffer or not see his kids. it sucks and it's unfair, but any judge is unlikely to side with an illegal drug user in a custody case where neglect and abuse are being alleged.
posted by nadawi at 3:41 PM on November 11, 2010
until the law changes, i think your SO needs to either actually give up weed and suffer or not see his kids. it sucks and it's unfair, but any judge is unlikely to side with an illegal drug user in a custody case where neglect and abuse are being alleged.
posted by nadawi at 3:41 PM on November 11, 2010
Response by poster: Thanks to everyone for the answers. I understand the points made about anonymizing and, after a lot of thought, decided not to. There is nothing in my profile to give away my identity, and the information I provided is not identifying enough for someone to use it against me. But thank you for the concerns.
And to those taking issue with my wish for a more aggressive attorney, I see your points. The problem we are facing is really not solvable. The ex is very aware of SOs medical condition, as well as the treatments he uses, including the cannabis, and before the divorce, she was on board with all of it.
The kids will be getting someone to "represent" them, and they have been talking with their mother about wanting to be with their dad a lot more, and to please stop with this. Whether she listens to them and takes their words to heart, we don't know.
Unfortunately, this problem is not really fixable and SO is going to have to go along with the ex's demands, if he wants to see his kids.
Thanks everyone who provided constructive information. Mods, you can go ahead and delete this.
posted by sundrop at 3:51 PM on November 11, 2010
And to those taking issue with my wish for a more aggressive attorney, I see your points. The problem we are facing is really not solvable. The ex is very aware of SOs medical condition, as well as the treatments he uses, including the cannabis, and before the divorce, she was on board with all of it.
The kids will be getting someone to "represent" them, and they have been talking with their mother about wanting to be with their dad a lot more, and to please stop with this. Whether she listens to them and takes their words to heart, we don't know.
Unfortunately, this problem is not really fixable and SO is going to have to go along with the ex's demands, if he wants to see his kids.
Thanks everyone who provided constructive information. Mods, you can go ahead and delete this.
posted by sundrop at 3:51 PM on November 11, 2010
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I'm sorry for your difficult situation.
posted by Madamina at 12:17 PM on November 11, 2010 [5 favorites]