Parenting Stoned: Family and Juvenile Courts in Arizona

MedicalMJ

Arizona enacted the Medical Marijuana Act (Prop. 203) in 2010, which is regulated by the Arizona Department of Health Services.  Essentially, with a doctor’s assent, marijuana is considered medicinal and the possession of the same, for that purpose, is not illegal under state law.

Despite the passage of the Act years ago, there are still problems with the legalization of marijuana in the courts. In family court, the legalization of medical marijuana can impact parenting issues.

For example:

  1. You share legal decision-making (FKA: custody) and parenting time with your ex-husband.  You find out that he has obtained his medical marijuana card when he tells you that it is the only thing that helps him with his chronic back pain. How does the knowledge that your ex-husband may use marijuana during his parenting time affect your legal position?

 

  1. You get your medical marijuana card for a long-term diagnosis. Your ex-husband requests a court order preventing you from driving with your children in the car because he is concerned that your medicinal marijuana creates a risk of impairment.  What can you do?

 

  1. You were recently involved in a car accident with your child in the back seat. You informed the responding officer that you have a medical marijuana card and he believes that you were impaired while driving.  He calls the Department of Child Safety (DCS) to take temporary custody of your child, and the agency believes the child is not safe in your care.  How long can your child be kept away from you, and what can you do to prove that you parent safely?

 

Family Court and the Impact of Medical Marijuana

There are few studies detailing that social marijuana use is dangerous or harmful.  If it would bother you that a parent would have a beer or glass of wine with dinner while responsible for children, then smoking pot will probably be unacceptable to you as well.  Although some judges and commissioners have begun to accept medical marijuana use as part of some parents’ lives, others may have reservations and it could affect your parenting time.

Plus, although medical marijuana is legal at the state level in Arizona, federal law still prohibits its possession or use.  This can prevent some licensing agencies from allowing you to continue working in your field.  Change in employment status is one of the most common reasons that separated or divorced parents return to family court in Arizona in order to modify parenting time and child support orders.

The important thing to remember is that, notwithstanding the fact that Arizona legalized medical marijuana a half-decade ago, the legal use of marijuana is still a difficult issue in family court.  Although the social stigma of marijuana use has dramatically decreased in the past few years (and also in smaller courts like the Scottsdale City Court or Phoenix Municipal Court), the Family Court division of the Maricopa County Superior Court may still view your marijuana use disfavorably.

DCS, Dependencies, and Medical Marijuana

DCS is often even less amenable to medical marijuana use.  If the Department believes that your marijuana-assisted treatment for your medical condition places your children at risk, they may remove your children from your care and file a dependency action in the Juvenile Division of the Maricopa County Superior Court.  Most substance-related dependencies involve drug testing and counseling to ensure that you are willing and able to parent safely; however, your diagnosis and prescribed treatment of marijuana may conflict with the Department’s goal of forcing you to prove yourself substance-free.  Even if you and your doctor work out a different method to treat your condition, it could take weeks or months before your TASC screenings clear up.  In the interim, the Department will continue requesting restrictions and monitoring during your parenting time and play a significant role in your children’s lives.

Moreover, the TASC screening results are not as simple to interpret as the “positive-or-negative” dichotomy suggests.   Many Department workers are not well-versed in reading the TASC results and will expect the results to return to “negatives” within a week or two of your last use.  With more concentrated forms or higher dosages of marijuana, THC metabolites – the substances for which the urine, blood, and hair tests screen – can remain in your system for weeks or even months after your last use. In some cases, your screening results may vacillate between “negative” and “positive” over a course of weeks, even without new use, based on your body composition, diet, exercise, and various other factors.  Even comparing one test to another, even if the tests were only a day or two apart, can provide dramatically different and apparently contradictory results unless the screenings are mathematically “normalized” for your hydration level the day of each test.

DCS rarely consults with laboratory managers or physicians before seeking Juvenile Court involvement, but they will sometimes respond to the data if it is presented early – and convincingly.  For a parent, even a few days away from a child (or with visitation under Department supervision, only) can be excruciating.  The period of weeks or months while you, the Department, your doctor, and the Courts resolve a medical marijuana-related dependency matter can be one of the most difficult and frightening times in your life.

 

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Sex Offender Registry Injustice

What was once a well-intentioned law that was meant to make the community a safer place has spiraled into a witch hunt looking to burn alive anyone who wears a pointed hat. While no one would argue that sex offenders should escape free of consequence, the lifetime sentence society has instilled upon these people is extreme. When we think sex offenders, our minds automatically travel to rapists, pedophiles and child molesters. The worst of the worst. Monsters who prey on innocent defenseless victims. Yet that term has come to include so much more.

Justice gravestone

The reason the registry was so heavily advocated for was because of the mistaken belief that sex offenders are more likely than not to strike again. It was believed the recidivism for sex offenders was the norm and not the exception. Although rapists and pedophiles may have the highest rate of recidivism they are not the only ones to be included in this all-encompassing registry. The Department of Justice places the likelihood of repeat sexual offenses around 14% at the high end. The registry was meant to be a warning to the community of dangerous offenders who were likely to repeat the offense that got them into trouble, but has turned into a permanent catch-all registry. The unfortunate fact is, most sexual offenses are committed by family members or someone known to the victim rather than a dangerous stranger. The registry is not particularly effective for preventing intrafamily crimes, aside from alerting people about registrants prior to starting a relationship with them.

Before we fly off the handle, there are definitely some sex offenders that are dangerous. There are some that are, and will always be, a danger to the community. However, not ALL sex offenders are a danger to the community. In fact, the majority of “sex offenders” are just people who made mistakes. The term “sex offender” has grown to encompass a myriad of people that were never supposed to be included on this list of dangerous offenders.

The best example is being placed on a sex offender registry for public urination. This cDrinks at a barharge is almost commonplace in Tempe, Arizona on Mill Avenue, where many young college students go out drinking and eventually have to use the facilities. Tempe does not offer public restrooms, so these patrons are forced to seek out a private restroom in a club. To get into the club, they must wait in line, show their ID, then (if they didn’t have to pay for entrance) run to the closest bathroom. There are no other alternatives – except behind a dumpster. Did the City of Tempe solve this issue by installing public restrooms or even port-a-johns? No, they did the next logical thing: started placing people who urinate in public on a sex offender registry.

This should be considered an abuse of the registry that was supposed to be keeping neighborhoods safe from sexual predators who stalk or kidnap their victims, strangers to the perpetrator, and force sexual acts upon them. There are certainly some people who deserve to be on this list forever, but the registry was never meant to include such “harmless” acts as peeing on the side of the highway miles away from the nearest rest stop. While those acts are technically illegal, a ticket and fine would be an appropriate punishment — not a lifetime on a sex offender registry.

Having these petty offenses qualify for registry status only serves to dilute the seriousness of being on the registry in the first place, reducing its effectiveness in warning neighborhood residents of potential risks. The registry was meant to keep communities safe, but has become a lifetime punishment for many people caught within its bloated scope. Does that make you feel safer?

Parenting Disaster

The tables were sadly turned on a well-meaning former Pennsylvania prosecutor and his wife when they were charged with child abuse. The couple, Douglas and Kristen Barbour, thought they were doing the right thing in adopting two children from Ethiopia, but soon learned they were not equipped to parent these children with special needs.

The Barbours adopted a 6-year-old boy and an 18-month-old girl in March of 2012. They believed if they raised the children as they had raised their two biological children, they would enjoy the same great results. Unfortunately, the children did not adjust as well as the parents had hoped and the Barbours soon recognized they needed help. They sought the advice of an expert in foreign adoptions but refused to follow his recommendations to be more flexible with their parenting style. They wanted to parent the way they saw fit.

Small GirlThe Barbours made sure to bring the children to the doctors when the children were ill and tried their best to handle the children’s behavioral issues. However, it was soon clear the parents could not meet the children’s needs and the children suffered as a result. Although the boy was six, he went to the bathroom in his pants. The parents attempted to discipline him by forcing him to eat in the bathroom or stand alone in the dark. The girl had multiple head fractures – although the parents allege it was because she was clumsy, the doctors who examined her were doubtful of that conclusion. As a result, the boy was malnourished and ended up losing 10 pounds in the Barbours’ custody and the girl was healing from multiple fractures.

Similar situations have happened in Phoenix, Arizona and Birmingham, Alabama in recent years, where excessive punishment led to criminal charges that made national news.  Arguably, many of these parents did not intend to hurt their children. In fact, several sought help from experts, but in the end were patently unsuccessful, usually because they failed to follow the experts’ advice. Notwithstanding various safeguards that exists to protect children, the harm that parents can inflict is often the worst of all.

Click here for more on this story.

Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

Jury Nullification in Arizona Marijuana Cases

Many of you may know William Penn as the man on the Quaker Oats packaging. Some of you may also know him as the founder of the State of Pennsylvania. What you may not know is that in 1670, William Penn was put on trial in London for soapboxing his Quaker principles. Why do we care about a case that happened 300 years ago in England? Well what if I told you that because of that case, a jury can now say, “forget the law” and make their own decisions on your innocence. Yes, even if two officers in Scottsdale, Arizona caught you with a joint, a jury of your peers could still find you ‘not guilty’ of drug possession.

How is that possible you ask? The answer is jury nullification. Jury nullification allows the jury to acquit the defendant even when the government has proven its case beyond a reasonable doubt.

It is not a surprise that prosecutors do not want you to know that you have this right. Some Arizona courts have even gone as far as to downplay the power of this right by saying, “while jury nullification is a fact of our jurisprudential process, anarchy would result from instructing the jury that it may ignore the requirements of the law.” The reality is that our legal system has jury nullification written in plain language for all to see, but the common juror does not even know about it, and the government isn’t losing sleep over that.

In a recent article in The New York Times, George Washington University law professor Paul Butler advocates the importance of jury nullification. “If you are ever on a jury in a marijuana case, I recommend that you vote ‘not guilty’—even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.”

It is no secret that throughout the court system, especially in Arizona, marijuana cases are clogging up the docket and creating unnecessary burdens on those involved in the case.

In Arizona, first time possession of marijuana cases are offered TASC/Diversion. This gives the possessor the opportunity to avoid a felony conviction if they participate in drug treatment. Obviously there is a debate over whether casual marijuana use warrants any therapeutic intervention. For those ineligible for TASC or who do not want to participate in drug testing, a jury trial is your option. The jury has a right to simply nullify the conviction.

There have also been many cases that have used the nullification power to set otherwise guilty defendant’s free. These verdicts are more commonly known as “conscience verdicts.” Hanson v. United States, 156 U.S. 51, 102 (1895). The argument that has been made in support of jury nullification being explained to the jury before they deliberate follows this logic; a jury of your peers are meant to take the law and apply it to the facts, but the jury alone makes the decision about what facts and what law matter in your case, therefore, the jury, and only the jury, should have the right to make the determination, regardless of the facts and the law, about your innocence. Makes sense right? Well the founders of our country thought so too, that’s why jury nullification is written into our law.

So the next time you are in the breakfast isle at your local market, make sure you take a moment to tip your hat to William Penn, not only for delicious cheese steaks, but also for highlighting the power of a jury to send the message to the state that some laws do not warrant convictions.

If you are interested in viewing the full New York Times article “Jurors Can Say No” please follow the link here:

http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=1&src=tp&smid=fb-share

Marie J. Cacciatore is a second year law student at Phoenix School of Law and clerk for Gregg R. Woodnick PLLC.

Leslie A. Satterlee Receives Community Service Award!

Leslie A. Satterlee was recently awarded Outstanding Community Service Award for the graduating class of 2006 from the ASU Sandra Day O’Connor College of Law.  The award was presented at a Reunion for the graduating classes of 2006, 2001, 1996, 1991, 1986, 1981, and 1976.  Ms. Satterlee received her award for her work with the Legal Assistance to Women in Shelters (“LAWS”) Program.  The LAWS program provides legal assistance and information to victims of domestic violence in Maricopa County.  Ms. Satterlee created the program in 2009 while chair of the Domestic Violence Committee of the Maricopa County Bar Association, Young Lawyer’s Division.

 

 

In addition to Leslie’s volunteer work, she is the President of the Maricopa County Bar Association Family Law Section and is in practice at Gregg R. Woodnick, PLLC where she regularly represents parties in divorce, child support and custody proceedings throughout Maricopa and Yavapai Counties.

7th Annual 5K Race for Judicata

The Woodnick firm is a proud sponsor of the 7th Annual 5k Race for Judicata. Located in Phoenix, Arizona the race benefits survivors of domestic violence and the Maricopa County Bar Association Young Lawyers Division. Attorney Leslie A. Satterlee from the Woodnick firm is the Chairperson of the Maricopa County Bar Association’s Family Law Section. She is also the Chair-Elect of the Young Lawyer Division of the Maricopa County Bar. Leslie has experience representing a diverse clientele in matters involving divorce and family matters. 

Thinking Twice About Shower Time

It is not uncommon to shower with your young children. It’s efficient and it teaches them how to properly clean themselves.  But what happens when it is the stepparent who takes a shower with the child? Unfortunately, allegations are a result, and the situation quickly turns from ‘a hygiene lesson’ to crimes that could involve lengthy prison sentences.  Consider the following:

Jeff and Molly divorced when their son, Joey was almost 4 years old.  They have joint legal custody and share parenting time between their homes in Arizona. Joey has a room at his father’s house in Chandler and one at his mother’s townhome in Scottsdale.  Shortly after the divorce, Molly married Stewart. Stewart, a high-school history teacher, is also divorced and has a daughter, Jenni, who is a few months older than Joey. Joey and Jenni get along well as stepsiblings.  They have separate bedrooms at Molly and Stewart’s house, but often share the bunk beds in Joey’s room. 

One afternoon, Joey and Jenni are playing in the backyard sandbox while Stewart is fixing a few broken sprinkler heads.  Afterwards, Stewart and both kids get into the walk-in shower located in the master bathroom and clean up for dinner. Altogether uneventful, the kids emerged clean and happy, chatting about their mud fight earlier. 

When Joey visits his father’s house the next day, he says “I showered with daddy-Stewart.”  Jeff promptly calls the Chandler Police Department and Child Protective Services. As a result, Stewart now stands accused of molesting his step-son.  The school where Stewart has worked for 10 years learns of the allegations and puts him on administrative leave during the investigation.  Stewart is questioned by the Chandler Police Department and Joey is forensically interviewed at Child Help in Phoenix.

Even after the police determine that there is insufficient cause to press charges and Child Protective Services “unsubstantiated” the allegation, Stewart’s reputation has been tarnished.  As a teacher, he still wears the ‘scarlet letter’ of the teacher who was accused of molesting a child.  Even his neighbors are aware of the allegations, as they saw the police cars and CPS at the home.

Certainly there are legitimate situations where stepparents abuse their stepchildren, and when the allegations are true, we want the police, CPS, and Courts to prosecute and incarcerate those offenders. However, there are also many instances were something innocent is turned into a serious and costly legal matter.

The Perils of Being A ‘Sugar Daddy’

An article ran in the Huffington Post about the phenomena of college women engaging in paid arrangements with older men.  Around the world, there are countless websites which facilitate these “friendships” for a fee. 

An expensive fee was not all one client experienced as a “Sugar Daddy.” I recently consulted on a case involving a successful Information Technology (IT) Executive in Scottsdale, Arizona.  He was recently single following a divorce, but still wealthy, even after sharing some of his fortune with his ex-wife.  Being burnt out on relationships, he proclaimed he was ‘too busy’ building his business to meaningfully date. So his friend sent him a link to one of these “Sugar Daddy” sites and even pre-paid for the month’s membership as a “divorce gift.”  Within days he had a date.   She was from Tempe, Arizona and at least 15 years his junior.  

The arrangement was simple, a fee ($3,000) was paid to the agency for the date.  The fee was apparently divided with the ‘date’ and the agreement provided for 4 dates to occur one time a week for a month. Sex was not contracted for, as that is illegal in Arizona.  If the arrangement was working out after the month, the fee would be recharged again for subsequent months.

He met the woman and, not surprisingly, they had intercourse.  They met 3 more times to finish out the month’s agreement. My client decided this sort of arrangement was not for him (after the 4th date) and he declined paying for another month of dating.  She called and texted him persistently asking that he pay the $3,000 for another month of friendship.  He told her he was not interested and then ignored her relentless calls.

A few weeks later he received an envelope in the mail.  Inside was a handwritten note and an ultrasound picture.  He contacted me in a panic and told me that he had engaged in sex with her 4 times and wore protection each time. She texted him to see if he received the picture and said she wanted to keep the baby.  He was petrified and we needed a game plan.

I printed all of the texts and emails she had sent him since she announced the pregnancy.  Something was odd about the writing style.  After staring at them for a while, it was obvious that there were different writing styles in the emails.  Was this a scam?  Had she done this before?  Should we call the police department? 

My client did not want to contact the police, as he did not want to be further embarrassed by the situation.   A call to my close friend who is an OBGYN at Banner Hospital taught me that we could obtain an in-utero DNA test. We decided to call the bluff.  We offered to pay for the test immediately and schedule an appointment at the doctor’s office for the procedure.   When she received the email and appointment information she stopped calling and disappeared. She was not pregnant, just running a con game. We shared the ultrasound photos with gynecologist who informed us that the pictures were not only old, but of a baby that would have been conceived 2 months prior to the “Sugar Daddy” contract.  

Is there a lesson to be learned?  There are probably many.  Did my client learn it….I hope so.  

 http://www.huffingtonpost.com/2011/07/29/seeking-arrangement-college-students_n_913373.html

This story had a few key facts changed to preserve the privacy of those involved.