Legal Question in Family Law in Massachusetts
Can behaviour altering meds be a factor in custody?
My ex through mutual agreement has custody of our young son (I live about an hour from her, I'm gov/military employed, so we thought this was the best decision for our son, who is only a couple of years old. But I see him very frequently.)
I don't want to stir up trouble, but in the past my ex had problems with strong pain meds and clonipin. (I have documentation substantiating this.) I have reason to suspect she might be having the same problem again. Do I have the right to take my son if I feel she is having a problem with prescription meds? Can her pharmacy records be ordered into court (not medical records, but her filled prescriptions from the pharmacy)? What really is irritating to me about this is that she has a live in fiance who seems to be more interested in my son's welfare than she is, and turns a blind eye to her behavior because of her looks, while she is spending a lot of time at the ER trying to get painkillers, which by the way make her have fierce mood swings, and hysteria (based on my experience with her). What are my options?
2 Answers from Attorneys
Re: Can behaviour altering meds be a factor in custody?
You do not have the right to just "take your son" without a court order. If this is an emergency and you feel your son is endangered, you can obtain an emergency order for custody, but you must be sure your evidence is in order; and most likely you will need to recite in detail, one or more incidents showing your ex-wife's out of control behavior.
In the longer term, you are likely going to need the appointment of a "Guardian ad Litem" to investigate and report on the problems. You can have her prescription records and medical records subpoenaed (the medical records by way of a court order.) The fierce mood swings are obviously very troubling for a young child.
If your child has a therapist, that person may be helpful. If not, and you feel your child or children needs therapy, that may be helpful, especially in documenting any problems.
Re: Can behaviour altering meds be a factor in custody?
You do not have a unilateral right to stop visits, assuming this matter is in court. You need to obey the court order. If you are concerned about your child's welfare, then you need to petition the court and present evidence that not only is the person taking Klonopin, but the effects of the medication are so detrimental to her ability to care for the child, that the court needs to intervene. You also raise other issues that you can bring to the court's attention.
In any proceeding you have a right to conduct discovery and depose witnesses or potential witnesses, or persons with information relevant to your position or view.
Records can be requested by motion from your spouse or ex, and ultimately a court order can issue for the records to be brought into court.
This is a complex situation for which you may need to consult an attorney.
If you have any questions, call me.
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