When a Las Vegas Family Court judge determines custody and visitation of a child, drug use by a parent — including use of legal use of marijuana — can be a factor in the outcome. For any parent involved in a custody matter, it is extremely important to understand how drug use affects a Las Vegas child custody case.
A state law requires Nevada courts to decide custody issues based on what is in the best interests of the child. The statute specifies a number of considerations that enter into making that determination.
The law does not provide that drug use is a basis for a judge to deny custody. However, use of drugs can be a factor in a custody case if evidence shows that the drug use:
The legal status of a drug is not a defense to an assertion that the use affects the parent’s fitness for custody. Even use of legally prescribed or purchased drugs can affect custody, if evidence demonstrates that the use affects the parent’s ability to care for the child or puts the child at risk.
When one parent makes allegations against the other parent about drug use in a custody case, the judge holds an evidentiary hearing to gather facts relating to the claims and the circumstances relating to drug use. The judge also can order a parent to take a drug test during the custody proceeding.
After reviewing all the evidence, the judge determines whether the parent’s drug use affects the parent or child in a manner that is inconsistent with the child’s best interests. The court may deny custody or visitation rights if the judge finds that the use is detrimental to the child or negatively affects the parent’s fitness for custody.
Since legalization of marijuana in the state in 2017, Nevada family court judges — like those many other states — increasingly face questions about drug use in child custody cases. When marijuana use issues arise in a custody case, individual judges often handle the claims in different ways, since there are no bright-line rules that apply. That means the outcome can be unpredictable.
Generally, if a parent uses medical marijuana or recreational marijuana, the court’s inquiry focuses on whether the use affects the parent’s fitness to care for the child and whether it endangers the child. The court’s consideration is two-fold: impairment of the parent and effect on the child.
For parental impairment, the judge considers whether there is evidence of abuse or violence, neglect, or failure to provide for the child. The court’s inquiry in a legal drug use case is usually similar to a case involving potential alcohol abuse by a parent.
Possible direct effects of legal marijuana on a child may include risks from access to drugs (including marijuana edibles), and even whether the child suffers from exposure to marijuana smoke. While research on the effect of secondhand smoke is contradictory, that does not prevent a concerned parent from raising the issue.
Questions about the effect of a parent’s drug use can occur in several types of proceedings, including the initial custody and visitation determinations during or immediately after a divorce. In addition, if a parent becomes worries about a custodial parent’s drug use, the concerned parent may file a petition requesting modification of the original custody order. A parent’s drug use also may be relevant in a proceeding to terminate parental rights.
Regardless of the type of proceeding, representation by experienced legal counsel is essential for both parties when a custody case involves allegations relating to drug use. The court’s decision hinges substantially on the evidence presented to the judge about the drug use and its effect on the child. It is a serious mistake for any parent to attempt to represent himself or herself in the evidentiary hearing, on either side of the case.
Respected family law attorney Joseph Gersten assists clients with child custody issues, as well as all other types of domestic law matters. Attorney Gersten’s investigative background and trial experience are especially important in custody cases that require gathering evidence and presenting the case in a hearing. His knowledge of drug laws and offenses also is beneficial when a custody case involves allegations of drug use or abuse by a parent.
Attorney Gersten vigorously protects your rights and interests, whether you are initiating a claim of drug use in a custody case or defending against the claim. He handles petitions for modification of custody and termination of parental rights cases, as well as custody cases in divorce or legal separation proceedings.
At The Gersten Law Firm, your initial consultation is always free-of-charge.