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Wednesday, July 6,2011

Cannabis or custody?

A medical marijuana patient in Lansing is sentenced to jail after failing to comply with a court order to not use marijuana as he seeks to maintain custody of his daughter

by Andy Balaskovitz
In a case that could have implications for medical marijuana patients who are parents, a Lansing man was sentenced Tuesday to three days in county jail because he refuses to stop using medical marijuana and may lose custody of his child because of it.

Livingston Thompson Jr., a state-registered medical marijuana patient who suffers from epilepsy, has been fighting to maintain custody of his 10-year-old daughter stemming from a November incident between the father and daughter that attracted attention from Child Protective Services.

After months in the Ingham Circuit Court family division system, Thompson was ordered on June 8 by Judge Richard Garcia to stop using marijuana as part of the conditions to maintain custody of his daughter. But because Thompson tested positive twice for using marijuana since June 8, Garcia sentenced Thompson to three days in Ingham County Jail for “woeful contempt of court orders.”

Garcia refused to recognize Thompson’s right to use marijuana for medical purposes Tuesday and said he “fraudulently” obtained his state-issued card.

“You need marijuana because you’re addicted to it,” Garcia said.

Garcia also chided Thompson, who is 32, Tuesday for appearing on WILX-TV last week with his daughter to discuss his case.

“The best thing you can do is not throw her in front of you (on TV) so you can smoke pot,” Garcia said. “(That) offends me.”

However, Thompson’s attorney, Matt Newburg, said he plans to appeal the court order restricting Thompson from using marijuana “before Friday,” the day Thompson is due in jail. Newburg said Thompson is protected under the state Medical Marihuana Act to use cannabis for medical reasons and should not have to risk losing custody because of it.

“You couldn’t have a clearer conflict (of the Michigan Medical Marihuana Act),” Newburg said. “Evidently he (Garcia) believes everyone who gets licensed through the state (to use medical marijuana) is a fraud.”

The state Medical Marihuana Act, approved by Michigan voters in 2008, states: “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

During testimony Tuesday, Newburg asked Ingham County family court case worker Wanda Kester, who is overseeing the case, if Thompson’s daughter has been in any “unreasonable danger” that she could specify for the court.

Kester did not mention specific incidents, but said: “I can say I have concerns for (the daughter) in this house.”

“’Concerns’ is not enough,” Newburg said outside of the courtroom in an interview.

Newburg said this is the first case he’s aware of in mid-Michigan in which a parent who is a medical marijuana patient could lose custody of a child because of his medicine-of-choice. He said Garcia’s ruling Tuesday could have implications for medical marijuana patients who are parents.

“It’s clear what it means for parents in this county: It’s going to be an uphill battle,” he said.

Garcia stated several times that Thompson’s case is not about his medical marijuana card, but about if his daughter is safe in his custody. During the 30-minute show cause hearing, Garcia went through the child’s past. From 2001 to 2003, she was placed in foster care due to “unsanitary home conditions” and domestic violence issues between Thompson and his former wife. She was placed in foster care again later that year due to a drug raid at Thompson’s home that turned up cocaine and marijuana, though Thompson said no criminal charges were filed. In 2006, Thompson confirmed that his home was red-tagged by the city. Then in 2009, an infant child of Thompson’s “came back from parent time and tested positive for marijuana,” Garcia said, which Thompson confirmed.

“You can understand the court has concerns about the stability of your household,” Garcia said.

Kester, the case worker, also was unable to locate Thompson’s 10-year-old daughter before Tuesday’s hearing because Thompson had moved out of his downtown Lansing home over the weekend and into his sister’s house with his daughter and his wife. Thompson said he was unable to afford rent for the house on Allegan Street because of “legal fees.”

While Garcia sentenced Thompson to three days and “more weekends” if he continues to test positive for cannabis, he allowed him custody of his daughter. But he ordered Kester to investigate the house where Thompson’s daughter is staying after the hearing and if it is not satisfactory, then the daughter would be placed in foster care.

Dan Korobkin, a staff attorney for the American Civil Liberties Union of Michigan, said cases have popped up in California and Colorado that deal with visitation issues.

He said the state Medical Marihuana Act “specifically speaks to whether parents can be denied custody or visitation based on them being a medical marijuana patient,” and that courts in other states have ruled the same way.

However, the Associated Press reported last year of a Washington state man who lost custody of his two pre-teen boys because his marijuana grow operation was raided in 2007, even though criminal charges against him were dropped because he’s a certified patient.

Korobkin said the ACLU of Michigan recently filed an appeal in Oakland County that involves the denial of visitation rights because the mother is a medical marijuana patient.

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