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FS-Does Finding Narcotics Cause for Reopening Custody Case?
Jan L. Warner & Jan Collins

Question: After quite a few very dysfunctional years, my wife and I separated amicably. I moved out three months ago and began paying an agreed amount of support to help her take care of our daughter who is nearly eight years of age.

Although she works full time and is a good mother, my wife has begun dating regularly, and her attitude seems to have changed. Since my wife and her friend like to go off every weekend, she asks me to take care of our daughter.

Last Friday, my daughter and I were going camping early, so I picked her up at school (my wife was still working) and took her home to pick up her clothes, etc. I still have a key. As I was waiting for my daughter, I found drug paraphernalia in the living room and what appeared to be marijuana in an ashtray. I used my camera cell phone to take a number of photographs. To me, this is most unacceptable. I did not bring it up to my daughter or my wife because I knew it would upset my wife and probably cause her to deny me access to my daughter!

My wife has not changed the locks, and I still have a key. I am now considering a suit for custody. How should I move forward from here?

Answer: Unfortunately, in many marital splits, both parents are good people who become involved in custody litigation.

Oftentimes, parents who are having marital problems make custody claims, not realizing the long-range implications: having to deal with lawyers, guardians ad litem, and mental health professionals; having every negative aspect of their lives made public; going through months, even years, of litigation in overburdened courts; spending inordinate amounts of money that has been borrowed or taken from the sale of assets; and, in some instances, entering into a process that can cause irreversible damage to the children. Using child-related litigation for the purpose of retaliation and financial gain should be discouraged.

But the situation you describe is very different, potentially dangerous and, in our view, requires immediate attention. You should contact a matrimonial lawyer immediately and decide how you should proceed. Since you have access to the property and there is no court order keeping you away, we believe that your lawyer will either advise you to 1) get as much evidence as you can in a reasonably short period and get it independently corroborated (with finger prints if necessary) or 2) bring an emergency action for custody based on what evidence you have, and hire a drug-testing lab to be at court to attempt to secure an immediate drug test on your wife. Your lawyer should also advise you about whether to call in the police or child protective services.

You should understand, however, that since you are the person who found and photographed the drugs and drug paraphernalia, your wife could potentially take the position that you planted the evidence.

Once the action for temporary custody is brought,
your wife will have an opportunity to be heard -- on shortened notice if the court determines that an emergency exists. The judge who hears the case will make a decision about temporary custody based on what is in the best interests of your daughter. As your lawyer will tell you, the facts must be developed and presented to a judge who, after hearing sworn testimony and reviewing the evidence, will make the decision.

For that reason, before a claim for child custody is made, there should be enough basic investigation and evidence to determine whether a good faith claim should be made. And if made, it should be for the right reasons -- to do what's best for your child.

If your wife's only vice is dating around, we might suggest that you rethink your position since you are getting more time with your daughter than many other fathers would. But if drugs are involved, we believe that you should move quickly to protect your daughter.

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Suggested Reading:
Separation and Divorce Guidebook
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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