Father’s Day marks a big victory in Vegas medical pot case

Keith Patton last month spent his first full Father’s Day with his son in four years. In fact, the two spent the entire weekend together.

“It was super fulfilling and also really emotional,” Patton said. He then paused before adding, “And man was it exhausting.”

Patton, who uses medical marijuana for migraines and muscle spasms, has been fighting for more time with his son since his custody case landed in Clark County Family Court in October 2012. He contends he has been treated unfairly because of his marijuana use, but he says the tide has been turning.

When he went public with his story last year, he was allowed to have only brief encounters with his son each Saturday and Sunday at Donna’s House, a facility for court-ordered supervised visits.

By January, the boy was having overnight visits at Patton’s Las Vegas home. By the end of March, the two were spending every other weekend together. Later this summer, Patton will be allowed to have additional overnight visits every Wednesday.

“It was the publicity, it was the pressure, that finally turned it around,” Patton said.

But the father isn’t done fighting. He wants a custody arrangement that gives both parents equal time with their 5-year-old son. And he doesn’t think his own mother, Cat, should have to supervise the visits, as is now required.

Patton said Family Court Judge Cheryl Moss, who took over the case this year, is giving him the opportunity to be the parent he wants to be.

“I truly feel like this is mine to screw up,” he said.

In court on May 26, Moss noted that she has been assigned five custody cases involving medical marijuana patients — all of whom are fathers.

“It’s a new trend here in Family Court,” she remarked.

Moss said the issue isn’t going away, and she wondered aloud which of her cases would set precedent.

Arguments in court that day highlighted one of the challenges judges face when making custody decisions in such cases. They can order drug tests for parents, but how do they interpret the results? And how should those results affect their rulings?

Attorney Andrew Kynaston, who represented the boy’s mother in court that day, said Patton’s test results showed chronic marijuana use.

“These are very high levels of THC,” the lawyer argued, referring to the principal ingredient in marijuana.

“That’s a term of art,” Moss responded.

Patton’s attorney, Patricia Vaccarino, acknowledged that he has been a chronic user for many years.

“He’s always going to be at the level that they consider high,” Vaccarino said. She later added, “He does not test high according to his prescription.”

Patton, 34, told Moss he used marijuana before coming to court that day.

“This is me under the influence,” he said.

Moss has prohibited Patton from driving with his son, although Vaccarino argued that he has had a clean driving record for the past 10 years.

During a recent interview with the Las Vegas Review-Journal, Patton said science is on his side. Citing recent studies, he argued, “If you’re a regular cannabis user, your driving is not affected whatsoever.”

At the May 26 hearing, Moss lifted the requirement for drug testing, although either parent may request reinstatement at any time.

After the hearing, Vaccarino said medical marijuana patients receive more scrutiny from Family Court judges than parents who use narcotics, or parents who have been charged with driving under the influence of alcohol.

“Alcohol isn’t even a therapeutic drug,” the lawyer said.

A LONG BATTLE

Erin Bersell, Patton’s ex-girlfriend and the mother of his son, has declined to be interviewed about their custody case.

Patton said the two 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 followed him in November 2012, and they share a spacious, two-story home with a pool. For nearly a year, Patton’s fiancée, Kelly Keyes, and her twin sons also have lived with them.

Bersell brought the custody case to Clark County Family Court in October 2012, when she asked for a new visitation schedule.

Gayle Nathan, the judge then assigned to the case, ordered drug testing after Bersell raised questions about Patton’s marijuana use. After Patton repeatedly tested positive, Nathan limited his visitation to two hours each Saturday and Sunday at Donna’s House.

He believes his vocal criticism of Nathan contributed to her defeat in last year’s primary election.

“I don’t think I’m solely responsible,” Patton said. “I think her actions are responsible.”

After the case received news coverage, Nathan increased Patton’s visitation time, although she never permitted overnight visits.

Patton said he uses marijuana regularly to treat migraines and muscle spasms caused by a 2003 skull fracture. It makes him a better father, he argues, not a worse one.

“To be the best dad I can be, I can’t have headaches all the time. I can’t be sick to my stomach,” he said.

Patton obtained his state-issued medical marijuana card in July 2013 but admits he used the drug before that. He said he does not use it in the presence of children.

Ed Kainen, one of Bersell’s lawyers, agrees that some people have valid medical need for marijuana; he just doesn’t believe Patton is one of them.

“This guy has never been a legitimate medical marijuana patient,” Kainen said recently. “He’s someone who got a prescription in a bogus manner, after the fact, to justify recreational use.”

Patton, who is unemployed, pays $250 per month in child support to Bersell. Keyes, 32, is a retail sales associate for T-Mobile, and Patton cares for her 11-year-old sons when she is working.

At the May court hearing, Moss commented on the irony when Kynaston would not agree to let Keyes supervise Patton’s visits with his son.

“She’s a mom with two kids, and she entrusts her kids with the dad,” the judge said.

Moss also pointed out that Keyes shares a home with Patton and is an approved driver for his son. The judge agreed to let Kynaston complete a background check on Keyes, but added, “I can’t keep her away.”

Patton said he spent most of Father’s Day weekend hanging out with his family around the pool. That Sunday, he posted a message on Facebook:

“Today is not about me, today is not even about dads, it’s about children. It’s about the opportunity to raise our children, it’s about being GIVEN the opportunity to raise our children. It’s about being what your kids need and creating a loving world for them. … This is the first full father’s day I have spent with my son in 4 years, and I don’t know if I have ever spent a single one with my own dad.”

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