Medical marijuana use questioned in Las Vegas custody case

Keith Patton uses marijuana regularly to treat migraines and muscle spasms caused by a 2003 skull fracture.

He’s also a dad.

Which leads to the question Patton has had printed in bright green letters on a black T-shirt: “Do medical marijuana patients have parental rights?”

Patton, 33, claims Family Court Judge Gayle Nathan has been stripping away his parental rights since she learned about his marijuana use. He is allowed only supervised visits with his 4-year-old son.

“It’s never been proven that I am unfit,” Patton told the Las Vegas Review-Journal.

But attorney Stacy Rocheleau, who has no knowledge of Patton’s case, said that’s not the standard in Nevada.

“The standard is: What’s in the best interest of the child,” she said.

Rocheleau, an attorney with Right Lawyers, primarily practices family law. Although the firm has no clients who are medical marijuana patients, its lawyers are preparing to deal with the issue of medical marijuana in custody cases.

“Every case is going to be different,” Rocheleau said.

Last year, the Nevada Legislature approved a bill that authorizes 66 medical marijuana dispensaries to operate in the state, including 40 in Clark County. On Friday, state regulations for the operation of those dispensaries were approved.

Rocheleau said she would advise parents who use marijuana for medical purposes “to be cautious” and to use the smallest amount necessary to alleviate their symptoms.

She argued that Family Court judges should treat medical marijuana like any other prescription drug but said some may be prejudiced against it.

Because of Nathan’s rulings in his custody case, Patton has accused her of bias.

He tried unsuccessfully to remove the judge from his case, and he publicly criticizes her every chance he gets. He has even used her portrait as his profile picture on Facebook.

But attorney Ed Kainen, who represents the mother in the case, denied that Nathan is biased against Patton.

“I think this judge has done everything right in this case,” the lawyer said.

Kainen acknowledged that some people have valid medical needs for marijuana that could raise difficult questions in custody cases; he just doesn’t believe Patton is one of them.

“The evidence is overwhelming in this case, if you look at it, that this guy is full of crap,” Kainen told the Review-Journal.

Patton obtained his state-issued medical marijuana card in July but acknowledges he had been using the drug before that.

Kainen said Patton believes the card “entitles him to do anything he wants without any legitimate inquiry into the consequences that it may have on his child.”

“This guy’s not the right spokesman for this cause,” the lawyer said.

Patton said he and his then-girlfriend, Erin Bersell, were living in Washington state when their son was born in January 2010. They later lived in Virginia and Florida.

After the couple broke up in March 2011, Patton moved to Virginia to live with his mother. He and Bersell reached an agreement in Florida that gave Bersell primary custody of their son.

Bersell eventually moved to Las Vegas, so Patton moved to Las Vegas in mid-2012 to be closer to his son.

Patton’s mother, Cat, followed him in November 2012, and the pair live together in a spacious, two-story Las Vegas home with a pool. Cat Patton describes her son as “an amazing parent.”

Records show that the custody case came to Family Court in October 2012, when Bersell asked for a new visitation schedule.

Patton said he wanted a custody arrangement that allowed each parent to spend equal time with the couple’s son. He said Bersell knew he used marijuana, so he was surprised when she raised the issue in court.

Nathan ordered a drug test, and minutes from a court hearing on Dec. 6, 2012, indicate that the test provided evidence of marijuana use. Cat Patton also took a drug test, but the results were negative.

At that hearing, the judge ruled that Patton would be limited to supervised visits at his mother’s home from 3 p.m. to 7 p.m. each Thursday, Friday and Saturday.

“Father is NEVER EVER to drive the minor child anywhere until there is a further ORDER of this Court,” according to the minutes.

Nathan also ordered Patton not to use marijuana in the presence of his son and not to consume the drug within 48 hours of having supervised visitation.

Patton agreed to participate in a 12-week patch program to monitor his drug use.

The parents reached an agreement in April that temporarily resolved the issue by giving Bersell primary custody and giving Patton visitation every other weekend.

Patton agreed to refrain from using any illicit drugs, and he agreed to wear a patch during his visitation periods with his son.

If he tested positive for drugs, he would again be limited to supervised visits until successfully completing another 12-week patch program.

Patton tested positive multiple times over the next three months, and in October, he filed a motion to enforce and compel custody and visitation. He argued that Bersell had been denying him access to his son.

Bersell, alleging that Cat Patton was no longer a good supervisor, countered with a motion asking for visitation at Donna’s House, a facility that provides supervised visits when ordered by a court.

Nathan ordered Patton to take another drug test.

“If that drug test comes back dirty, you’re on supervised visitation at Donna’s House,” the judge told Patton at a hearing on Oct. 24. “… I want you to experience how miserable it can be.”

Nathan continued the restriction on Patton driving with his son in the vehicle.

“I still have concerns that he, you know, he is adamant that he can use drugs any time he wants to,” the judge said. “And as long as he has that medical marijuana card, I have no way of knowing whether or not there’s drugs in his system.”

At a Nov. 20 hearing, Nathan discussed the results of Patton’s drug test, which revealed a small amount of THC, the principal ingredient in marijuana.

Patton, who is now representing himself, filed a motion in February to disqualify Nathan. The judge responded with a declaration in which she opposed the motion and denied having bias toward either party in the case.

Chief District Judge Jennifer Togliatti denied the motion after finding that it lacked merit.

Nathan has scheduled a status hearing regarding the father’s visitation for April 10.

Patton said his son last visited his home on Thanksgiving, when Cat Patton was allowed to supervise.

After that, they had only visits at Donna’s House for two hours each Saturday and Sunday.

But Patton ended those visits about two months ago.

“It was causing a lot of problems,” Patton’s mother said. “It’s a very sterile environment.”

Patton said his son cried every time they met there. Now their only contact is by phone.

“My son is depressed,” the father said, fighting back tears. “My son is going through more damage from these people than a plant or me could ever do.”

Patton said he uses marijuana “regularly but minimally.” He bristled when asked if he would give it up to be with his son, calling the question “ignorant.”

“Are you willing to stop breathing to be a parent?” he snapped.

Patton doesn’t think he should have to choose between marijuana and his son.

Photos of the boy are on display throughout the four-bedroom house Patton shares with his mother.

Only on the home’s second floor, near the entrance to Patton’s bedroom, can one detect the scent of marijuana.

Next door is his son’s unoccupied bedroom, with its tidy bed and a small drum set. On one wall is the boy’s name; on another is a children’s map of the world.

“I care so much about my son,” Patton said. “All I want to do is teach him and be his dad.”

Contact Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. Find her on Twitter: @CarriGeer