Thursday, May 23, 2013

Medical Marijuana Parent Not Disqualified for Custody

Like with the use of any other prescription medications, a parent who uses medical marijuana is not disqualified from custody in a family court according to the Michigan Attorney General.  If the pot-medicating  parent, however, exhibits behavior that is unreasonably dangerous to a minor child, the immunity provided by the Michigan Medical Marijuana Act [MMMA] may not be available.

Attorney General Bill Schuette was asked for an advisory opinion by State Senator Rick Jones (R-Grand Ledge) on the issue of whether the MMMA can be invoked by a parent who is the subject of a child protective proceeding, and what constitutes behavior creating an unreasonable danger for a minor child.

In a well-crafted 17-page opinion, the AG zeroed-in on the specific provision of the Act dealing with pot and  children, and noting the exception to that provision.  Section 4(c) of the MMA states:

A person shall not be denied custody or visitation of a minor for acting in accordance with this Act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

As for what type of pot-related behavior constitutes the creation of such an unreasonable danger, the Act does not say.  According to the Attorney General, an individual assessment would need to take the specific circumstances of the parent and child into account.  Certainly, things like substance abuse and addiction are legitimate inquiries relative to a juvenile protective or custody proceeding.  The MMA will not provide immunity in a family court from taking such things into account.

AG Schuette opined, "the medical use of marihuana alone does not create an unreasonable danger to a child."   Schuette cautioned in the opinion, however, that if a parent's use of marijuana negatively impacts that parent's ability to properly care for a child, it could be part of the overall custody assessment.

Germane to a custody investigation is whether the parent, while high, is sufficiently functional and thus capable of parenting a minor; the child's age is an important factor; whether, once high, the parent can drive the child to safety if an emergency arises; and does the child have asthma that could be affected by second-hand marijuana smoke.

These are a few of the concerns we conjured up over here at the electronic divorce lawyer.  The best course of action, we think, is not to get high, or  take other mood altering substances, around your children.

Sunday, May 5, 2013

Sex Change Does Not Invalidate Divorce

Of course, this case comes to us from Ann Arbor.  Last month, the Court of Appeals decided a divorce case involving gender reassignment in a published decision.

In the case of In re Estate of Burnett, a couple had been married when Husband underwent gender reassignment surgery and became a woman in 2003.  His Wife, who had apparently supported the M-T-F gender change, subsequently became incapacitated.  Her children obtained a guardianship and conservatorship over their mother due to her dementia and filed for divorce on her behalf.

Doing some forum shopping, Wife's children, as her guardians, first tried to file the divorce proceeding in Pennsylvania but they were rebuffed.  Although the couple was married in Ann Arbor in the mid-1980s, they had lived in Philadelphia until Wife returned to her daughter's home in Washtenaw County back in 2006.

Defendant-Husband argued before the Washtenaw Family Court that his gender reassignment rendered the marriage invalid as between a same-sex couple; Michigan outlawed same-sex marriages in 2004 by an amendment to our constitution.  Husband also tried to get the divorce proceeding thrown-out on the grounds that a fiduciary could not file for divorce on behalf of a ward.

The family court judge denied both motions for summary disposition, ruling that the couple had entered into a valid marriage contract back in the 1980s, not a same-sex marriage contract.  The Court of Appeals upheld the decision, stating:
We likewise reject Defendant's argument that his alleged post-operative status somehow magically dissolves what was otherwise a valid marriage.
Nor did the Court of Appeals see grounds for an annulment of the Burnett marriage.  Simply, Husband, even though now a woman through surgery, is out of luck.

In the meantime, Wife has since passed away so the case now has merely symbolic and precedential value.  Even if the United States Supreme Court were to recognize same-sex marriages this spring as a component to our constitutional rights to privacy and liberty, the result in this case would be the same.  As noted by the Court of Appeals, the unilateral acts of one spouse cannot render a valid marriage invalid.