How Does the Use of Medical Marijuana Affect My Child Custody Case?

Defective Drugs
Medical Marijuana and Child Custody

By David Carnes, Staff Writer

The legal use of marijuana for medical purposes by a parent shouldn't negatively affect a child custody case, right? Not necessarily. An adverse child custody decision doesn't have to be based on illegal behavior – child welfare services officials in the various states enjoy a certain amount of discretion to determine that even the use of a legal substance endangers the welfare of a child.

Marijuana's Legal Status in the United States

At the time of this writing, the use of marijuana for medical purposes is legal in 25 states and the District of Columbia. On the other hand, the use of marijuana, even for medical purposes, is illegal under federal law. Since federal law trumps state law, and since federal law applies throughout the United States, the use of medical marijuana is a federal crime even in states that have legalized it. Although the Obama administration voluntarily refrains from enforcing federal marijuana law where it conflicts with state law, the next administration might see things differently. 

The Legal Standard for Child Custody Cases

Every U.S. state applies a "best interests of the child standard" standard to child custody cases, not a "law-abiding parent" standard. Although all other things being equal a law-abiding parent will have an advantage in child custody proceedings over a law-breaking parent, obeying the law doesn't guarantee custody of a child. If a judge or a child welfare official finds that the use of a legal substance is having a significant "adverse impact" on a child, the child can be removed from the home or custody can be restricted.

The Reality on the Ground

In terms of medical marijuana use, child welfare officials are supposed to have to prove that the use of medical marijuana has an adverse impact on the child before it can be used to make custody decisions. In practice, however, the reality is often different. Lingering negative attitudes towards the use of marijuana often combine with the personal agendas of both judges and child welfare officials to disadvantage a custody-seeking parent merely for using marijuana as a medicine. 

Dozens of cases of child removal from the homes of medical marijuana using parents have been documented in San Diego alone, and similar cases are popping up all over the country. Complaints abound of courts and child welfare services abusing their discretion when no negative impact by medical marijuana has been shown.

Courts are divided on the issue. Maine's Supreme Judicial Court, for example, has formally ruled that in some cases the use of medical marijuana can render a parent unfit for child custody, while a Los Angeles County appeals court ruled that child welfare agencies must prove actual abuse of medical marijuana in order to use it in child custody decisions.

Pitfalls for the Unwary

The following aggravating factors tend to increase the likelihood that medical marijuana use will affect a child custody decision:

  • The child is exposed to second-hand smoke
  • The marijuana supply is unsecured and can be accessed by children
  • The parent drives while intoxicated on marijuana
  • The medical use of marijuana is illegal because it fails to comply with state law (use without a medical card, for example, or possession of amounts that exceed legitimate medical need)
  • Where medical marijuana use impairs parenting abilities

The Evolving Legal Landscape

The legal relationship between child custody and medical marijuana use is still in its embryonic stage, and it is impossible to reliably predict where the law will stand ten years from now. It is best to be as cautious as possible, since behavior that is considered acceptable today (using medical marijuana in the presence of your child, for example) might be retroactively used against you whenever political winds change in the future. 

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