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  • Writer's pictureEric Beal

Custody: Going on a trip? Don't forget where you live.

Have you been to Colorado lately? Or one of the other 29 States or District of Columbia that have some form of “legal” marijuana and THC products?

It’s a whole new world.

As you drive past the Wendy’s, coffee shop, and ski rental place, you see one or more places advertising “recreational” marijuana. They are there when you drive into town, through town, and out of town. It’s a big business.

It’s also not Texas.

Texas has not, as of yet, joined the parade. Whether it should, ever will, or when are good topics for friendly debate. But it has not as of now.

Marijuana is still illegal in Texas. Period.

What does that mean to you and your custody case? Can you lose custody of your children in a Texas Custody Case because you smoked marijuana? Can a judge order supervised visitation for you because you ingested some THC products while on a trip (no pun intended) to one of the marijuana “legal” states?

Short answer: Yes.

There are a couple of reasons for this.

First, Texas has elected judges. If you happen to be in a County with Associate Judges, they are essentially “hired” by the elected judges.

Texas judges get elected in the vast majority of places by conservative voters. And Texas judges don’t want to take a chance that they get voted out of office by an opponent that points out that the judge won’t “uphold the law.”

Moreover, there is the simple reality that possessing marijuana in Texas is illegal. So if you’re smoking or otherwise ingesting it, you may be associating with criminals — if you’re stopped with it, you are a criminal. Being a criminal or around criminals can lead to an arrest, and getting arrested can endanger your children.

Finally, being high is not a recipe for the best parenting. And judges realize that.

So how does this all happen?

If you end up in a custody battle — meaning not everything is agreed, and you are going to court — you can be ordered to take a drug test. This can happen within two weeks of a filing, or even sooner. Not enough time to get clean.

If you have been using or are suspected of using, and the issue is raised, it is likely that the court will order a drug test — one that goes back months. And the judge will find out that you have been using.

At that point, it is quite likely that the judge will issue an order that restricts your access to your children to times when you are supervised. How long that will last depends on the judge and the other facts in the case.

If you think that the other parent uses too, so you are safe. Be aware that the game is often played like this if a custody case is on the horizon: One parent “secretly” gets clean, while planning to file a case. After a sufficient time has passed, the case is filed. Then when the judge orders both parties to take a drug test, the one that has not gotten clean is found out, and the other either denies ever using or claims that it was a long, long time ago — and the test can’t show otherwise.

There are the basics. There can obviously be much more to it than this. But the bottom line is this: Enjoy your time in the other states, but remember where you live, and remember who your judges are.

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