Can I get full child custody if my wife is pregnant and using pot? 22 Answers as of July 12, 2013

My wife is pregnant and I caught her smoking pot. Then about a week later I took her to the doctor and found out he had prescribed her oxycodone (a drug she used to be addicted to) despite my concerns and the concerns of her primary pre-natal care doctor. Can I divorce and get full custody?

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Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
Under your facts, it is highly probable. Further, you need to ask for an emergency order requiring her to be tested, regularly and randomly, such that, if she screens dirty, she gets locked up or otherwise prevented access to harmful substances pending delivery. Stay well.
Answer Applies to: Alabama
Replied: 6/24/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
You can divorce your wife. Whether or not you get full custody would be up to the determination of the Judicial Officer hearing the case, based on all the facts presented. You would best be represented by an experienced Family Law Attorney.
Answer Applies to: California
Replied: 6/21/2011
Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
The Court will implement a parenting plan in the best interests of the child. Her drug use will definitely impact the Court's decision against her.
Answer Applies to: Washington
Replied: 6/20/2011
Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
Yes, especially if the child is born with THC in its blood or especially if the Oxicodone is in the baby's blood when it's born. That would mean she addicted the child before its birth and that is abuse per se. Hire a lawyer ahead of time to make sure. Good luck.
Answer Applies to: New York
Replied: 6/17/2011
Law Office of Patricia Van Haren
Law Office of Patricia Van Haren | Patricia Van Haren
It would be likely that you could get custody if you can establish that your wife is using drugs while pregnant. A court may order that she attend some sort of alcohol or drug rehabilitation and they may establish a random testing protocol. In the meantime, you should probably seek a medical intervention in the meantime to prevent her from doing drugs while she is pregnant.
Answer Applies to: California
Replied: 6/16/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Here is a link you may find useful: http://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/ChildCustody/childcustody .htm
    Answer Applies to: Connecticut
    Replied: 6/16/2011
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Cynthia J.Vermeulen
    The situation you describe, with your wife expecting a child and using controlled substances, is a concerning one. This circumstance arises on a regular basis, unfortunately. In Minnesota, there are a number of possible remedies, one of which involves filing for divorce and seeking sole physical and legal custody of your unborn child. The concern is what action you can take now which will protect the child from the special needs, developmental delays and disabilities caused by the mother ingesting these substances during pregnancy. It is vital that you immediately seek legal counsel from an experienced family law attorney who can represent and advise you on a course of action. Yes, obtaining full custody is possible, depending on your history and situation.
    Answer Applies to: Minnesota
    Replied: 6/16/2011
    Komanapalli Massey LLP
    Komanapalli Massey LLP | Mark A. Massey, Esq.
    Until the child is born, the family court has no authority to designate either prospective parent the sole custodial parent or otherwise.It lacks jurisdiction because there is as yet, no child. About all you can do is turn her into the police, explaining your concerns, and hope they will arrest her, and that the District Attorney will prosecute her so that a judge can then make orders which will preclude her from using any drugs, including the prescribed oxycontin, until the baby is born. Then the DCFS or other child protective agency can get involved and remove the child from her, and hopefully give the baby to you as sole custodian via the juvenile dependency court, but that system is just awful and unpredictable. They might find an excuse to keep the child from you and fabricate one if they cannot find one. Yes, they do that. Babies are easy to place and they mean lots of federal and state money for the agency and foster parents, and others. Your best bet is to avoid reporting her to DCFS, CPS or whatever it is called in your County. Instead, do the thing I suggested with the police, and immediately after the child is born, file an order to show cause and an ex parte(short notice [24 hours advance notice by phone will do]) request for emergency removal of the baby from mom and with sole physical and legal custody to you due to the danger mom poses to baby by her drug use. You should go ahead now and file your petition for dissolution and include a declaration in there explaining to the court what mom is doing, that it is the reason you are divorcing her, and ask the court for orders restricting mother's conduct. The court will have jurisdiction over mom once she answers your petition, and perhaps it will make orders that she cease and decist drug use, maybe order her into a residential drug program which would keep her away from the ability to use, and then if she violated those orders, the court could confine her at home or in jail for contempt.Just keep fighting until the baby is born, and especially after. You will get the child.
    Answer Applies to: California
    Replied: 6/16/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    The child's best interest is the deciding factor . Many factors are considered in deciding best interests, but the basic premise is that it is not a one parent or the other argument. Both parents need to be involved in parenting and the only real question in almost every case is HOW that responsibility and privilege is to be shared - not IF it will be shared. Your statement of the facts suggests that until your wife solves her drug problem her role in parenting should be limited and subject to some strict rules and supervision. But whether what a court chooses to do is the same thing you perceive as "full custody" depends on the actual facts and the law in the state where those decisions are made.
    Answer Applies to: Colorado
    Replied: 6/16/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    You can divorce, yes. You have to wait until the child is born for the court to make custody orders but I would believe this would be in your favor for custody.
    Answer Applies to: California
    Replied: 6/16/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, the courts certainly will be concerned about any drug use. What kind of parenting plan the court will order depends on a number of factors. You may want to get the divorce filed and bring a motion for temporary orders to determine the temporary care of the child.
    Answer Applies to: Washington
    Replied: 6/16/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    It is going to be very difficult for you to get custody of a child still in utero. Even once the child is born, getting "custody" may be difficult. We should also deal with the term "full custody," as it is often misunderstood in the state of Washington. Assuming that neither parent has any major problem like alcohol addiction, drug addiction, nor domestic violence, the court is going to pick one of the parents with whom the children will live the majority of the time. The other parent will get some sort of schedule of visitation with the children. Now, you have said that the mother has some sort of drug problem. Without knowing how bad it is, the court's first move is likely to be to order the mother to have a full alcohol and drug evaluation with random UA's, and order her to follow any recommendations by the evaluating agency. Depending on how that comes out, the court then might or might not make you the primary residential parent.
    Answer Applies to: Washington
    Replied: 6/16/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Not necessarily, depend on best interest of the children.
    Answer Applies to: Florida
    Replied: 6/16/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    You can certainly start the divorce. You can plea that drug addiction is grounds and use that for a basis for custody as well.
    Answer Applies to: Texas
    Replied: 6/16/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You have a lot of problems there. She may hurt your baby a lot by her actions.
    Answer Applies to: New Jersey
    Replied: 7/12/2013
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    This drug use would certainly be among the factors that a court would look at in determining what the best interests of the child are and how to best serve them.
    Answer Applies to: Florida
    Replied: 6/15/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    Divorce and custody are two different things. Regardless of what your wife does, you can get a divorce. As to the custody issue, health concerns and addictions can play a roll. I would suggest you speak to a local divorce attorney before you take action.
    Answer Applies to: Connecticut
    Replied: 6/15/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    Maybe. Drug abuse is certainly a factor in considering whether or your wife is a fit mother. It is not the only factor. Please see local attorney for further information about the likelihood of success at obtaining sole custody.
    Answer Applies to: Ohio
    Replied: 6/15/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Maybe. The court will give primary caretaking responsibility to the best parent, the parent with the closest relationship to the child, or potential to do that, and the person who has or will perform the most parenting functions. Is that you?
    Answer Applies to: Washington
    Replied: 6/15/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    While these are certainly important and relevant details, you need to discuss the situation in detail with an attorney to determine the viability of your custody case.
    Answer Applies to: Georgia
    Replied: 6/15/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You can ask for anything you want. It's up to a judge what to do. It would be unusual for a judge to take a newborn from a mother and shared custody is far more common than joint custody. Obviously, if you can prove drug use, that could affect the outcome. Get a very good lawyer.
    Answer Applies to: Georgia
    Replied: 6/15/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    Perhaps. You can definitely divorce. Custody and visitation issues are another matter entirely. Her drug use is a concern that the court will review closely. If you are in my area and are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/15/2011
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