We live in a time where many states have legalized marijuana for medical purposes, and several states have legalized it for recreational use.  A large portion of the population seems to have the opinion that pot really is not a big deal any more, and they are not concerned about smoking pot or about others smoking pot.  When it comes to a family law case, be warned that smoking pot is still a very big deal if you are involved in a custody dispute or a CPS case.

Time after time I have seen drug tests ordered in cases.  If either side makes an allegation that the other has been using drugs, drug tests of both sides will likely be forthcoming.  If either side requests a drug test, drug tests of both sides will likely be forthcoming.  A positive drug test – even for “just a little pot” – has almost universally led to one thing: supervised visits.  Even when there was no other reason to restrict a parent’s access to a child, admitting to using pot or testing positive in a drug test for pot is a big deal.  Judges do not like drugs, even if that drug is “just pot.”

In a CPS environment, a positive drug test for pot can lead to a “reason to believe” finding for neglectful supervision.  The state’s position is that if you are on pot, you cannot be properly supervising your child.  Therefore, they have reason to believe you are being neglectful of your children and you can find yourself in a very big mess.  I have even had a judge call CPS during a hearing (in a non-CPS custody case) when one party admitted on the stand to using pot.

The bottom line is, pot is still illegal in the state of Texas and it will be extremely detrimental to you in a custody or CPS case if you use it.  If you want to keep your kids or have unsupervised access to your kids, it is really best to just say no to pot.

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Child Protective Services (“CPS”) cases in Texas are covered by a relatively short timeline. The Texas Family Code provides that the case must be finalized within 12 months from the date of removal.  This may be more than twelve months after the child was taken from the home if the child was placed with relatives prior to the court case and the removal was deemed voluntary.  In that case, the timeline generally starts to run when CPS becomes the temporary managing conservator (“TMC”) of the child.  If a party can show “extraordinary circumstances.,” the timeline may be extended by an additional six months.

If the child is removed from the home and placed into foster care without a hearing, an emergency hearing must be held the first working day after the removal.   At the emergency hearing, the court decides if the emergency removal was appropriate.

Within 14 days of an involuntary removal, an adversary hearing is held to determine if CPS should be named the TMC of the child.   If the placement was considered voluntary, a hearing does not usually happen within 14 days.   The clock for those cases won’t start to run until the department has been appointed TMC.  Sometimes this occurs months after the child is voluntarily placed with a relative or friend.

For the next several months, the parties will report in to the court every 60-90 days.  The first hearing is a status hearing for the court to review the status of the case.  A case can involve several status hearings.  An initial permanency hearing is held approximately 180 days after removal.  At the permanency hearing, the court will review the status of services for the parties and the child, review efforts to locate a family placement, determine if it is safe to return the child to the parent(s), and otherwise review the status of the case.  A second permanency hearing is usually held around day 270.

Prior to trial, the parties almost always mediate.  If the case does not settle at mediation, the case will proceed to trial before the twelve month deadline passes (or eighteen months, in extraordinary circumstances).    At trial, the court will enter a final order that will either return the child to the parent(s), name CPS as the permanent managing conservator of the child, name a family member or friend as the permanent managing conservator of the child, or terminate the parent-child relationship.

Although twelve months can seem like a long time, it goes by very quickly in these cases. Parents are advised to begin working services immediately upon notification of a family service plan from CPS.  A parent’s failure to complete services by the deadline is generally not considered an extraordinary circumstances worthy of an extension.

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Almost every contested family law matter – divorce, child custody, CPS, termination of parental rights, paternity – ends up in mediation before a final trial.  Most, if not all, courts in Dallas County and Collin County require mediation before a final trial.

Mediation involves a neutral mediator – often an attorney but it does not have to be – who tries to help facilitate a settlement.  Normally, one party and her attorney are in one room and the other party and his attorney are in another.  The mediator goes back and forth between the rooms to try and reach a settlement.  Most of the time, I never even see the opposing party or that party’s attorney at the mediation.

Before I attend mediation with a client, I always prepare a confidential mediation statement that sets forth our side of the story for the mediator.  This helps save time at mediation.  Often times, I have found that the other side does not prepare a mediation statement.  I feel this gives my client a great advantage, as the mediator is starting the case with just our side of the story.

The vast majority of cases settle at mediation.   I have taken many cases to mediation that I thought could not be settled, and they have settled the majority of the time.  Even if a final settlement does not get reached, the parties can settle some of the issues to narrow down the issues for trial.

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