Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“I lived with my ex-girlfriend for approximately 5 years and 8 months. We had a son together after we had been together for less than a year. The situation between the 2 of us deteriorated over time and we decided to split. During a part of our relationship, we were both doing cocaine and smoking pot. Since moving away with my son, I have become clean. I realized the error of my way, and took action. I have asked his mother to do the same, unfortunately she has not. I do not know if she is doing cocaine anymore, but I do know she is still smoking pot and, on occasion, taking Ecstasy.
We lived in Massachusetts and our son an I now live in Maine. She decided to stay in Ma. because that’s where her friends and her work are. She works as an exotic dancer so she would have little time to be with our son during the day, not to mention that the lifestyle probably wouldn’t be good for our son. Like I said above, I asked her to follow suit and clean herself up and she has not. I looked into the court system in Maine and it says I must live here for 6 months to take this to court for custody. Now I have a few questions. First of all, is there anyway to bypass the 6 month wait period required for a custody hearing? Can the state force her to take a urinalysis and if she declines deny visitation / custody? Would the Department of Health and Human Services be able to help me get a court order against her, like a restraining order until she can prove that she is clean? Any other advice would be greatly appreciated.”The Maine Court could possibly take emergency jurisdiction under Title 19A Chapter 58 Section 1748 of the Maine Statutes. If the court did take emergency jurisdiction, the facts you give also point to jurisdiction in Massachusetts, so your ex may be able to get the case moved to Massachusetts if she tried. She would have to properly make that request, though.
Question: She can earn a living any way she wants, so exotic dancing may be a bit of a red herring. If the case is in Maine, the Court will use a “best interests” standard. Some of the factors in Section 1653 include reference to a stable home. In California, drug testing could possibly be requested in discovery, ordered if there was corroborative evidence (police reports, social services, etc.) or agreed to by stipulation. To be sure how Maine (or Massachusetts) deals with allegations of drug use, consult local counsel.
Answer:
I would be really careful about playing the “drug card” because if you come up short with this argument it will be tough to ever regain a sense that cooperative co-parenting is going to be your course of deaing with each other. Usually cases do not come down to proving that the other person is bad, but rather emphasizing the positive aspects of your parenting skills while giving the other side rope enough to hang themself.
