Pot Smoking Parents

Voters or legislators in 29 states plus Guam, Puerto Rico and the District of Columbia have legalized marijuana for medical purposes and eight states have legalized it for recreational use. According to the Pew Research Center, at the end of 2016, 57% of U.S. adults say marijuana should be legal despite the fact that the Drug Enforcement Administration recently refused to reclassify marijuana and has kept it as a Schedule I drug. Irrespective of states’ actions, marijuana and its derivatives remain illegal under Federal law but as attitudes and prohibitions against marijuana use continue to change, the law is scrambling to catch up.

Parents have temporarily lost custody of their children after getting a medical marijuana card. An ex-spouse complains that plants grown for medicinal purposes are endangering his children. The parent of a 9-year-old is visited by the police after he mentions his mother’s marijuana use at school. Even temporary removal of a child from the parents’ custody is a traumatic event for both the child and the parents and yet this is apparently happening throughout the country.

Child Custody, Visitation, Abuse and Neglect

Can a judge prohibit the use of recreational or medical marijuana in a child custody/visitation case? Can it be the basis for awarding custody? Should parental rights be terminated if there is marijuana in the home? When it comes to children and their protection, the issues get even more tangled and complex.   There are many ways in which a parent’s marijuana use could affect the well being of their children. Some issues with children are:

1. Effect of marijuana on pregnancy and lactation
2. Accidental exposure
3. Secondhand exposure
4. Poisoning
5. Psychiatric emergencies
6. Effect of marijuana on the undeveloped brain
7. School expulsion
8. Increased use by adolescents where it is legal
9. Using in adolescence increases the likelihood of problem use in adulthood
10. Effects on parenting

One California court was called upon to rule on whether or not drug counseling was an appropriate part of the reunification plan after the father lost custody.[i] In upholding such a condition, the court found that the father’s use of medical marijuana presented a risk of harm and that he had been using marijuana prior to it being legalized. He also used marijuana when the children were present and they were exposed to harmful second hand smoke. The court found further that marijuana had a negative effect on the father’s demeanor towards the children and that it represented a threat to the physical and emotional health and safety of the children. By contrast, a recent Colorado case found that use of medical marijuana did not necessarily constitute child endangerment.[ii]

Parental Use Cannot Be Considered

While the courts are struggling with this issue, advocates of legalization have taken it head on in California (Prop. 64), Massachusetts (Question 4) and two other states that sought to legalize recreational use in 2016. The initiatives contained provisions prohibiting judges from denying custody or visitation simply based on the parents’ medical marijuana use.[iii] Only “clear, convincing and articulable evidence” that the person’s actions related to marijuana endangers the child may be used when making custody or visitation decisions. Does this mean that a judge must turn a complete blind eye to parental use? What is the standard to be used?  It is interesting to note that the California law references the “Compassionate Use Act” governing medical marijuana yet the amendment appeared in Prop. 64, the “Adult Use of Marijuana Act” (recreational marijuana law.)

Is Marijuana Use the Same as Alcohol?

Clearly the abuse of alcohol can be the basis for custody, visitation and termination of parental rights. There is no question that it is in fact the root cause of a myriad of child custody issues. Is the same true then for marijuana? Must marijuana be treated just like alcohol in those states that have prohibited consideration of parental marijuana use as a factor in child custody cases? Would the children viewing their parents using marijuana be any different from seeing them drink a cocktail?

Where to from Here?

New legal issues take a number of years to trickle up the appellate ladder so we won’t have definitive answers for quite a while. For the time being, judicial educators should be developing training on this issue and judges should be examining their own feelings and prejudices about marijuana. If they feel, as the Attorney General does, that “Good people don’t smoke marijuana”[iv] judges will have to set that aside and make their judgments about custody and visitation without regard to who uses medical marijuana. Does this mean that judges cannot prohibit its use in front of children? Probably not, but it could. May a judge prohibit marijuana use and driving with the children in the car? The effects of THC and driving are still being studied and there is no consensus on what level of THC constitutes impairment. What if the parent is using marijuana recreationally rather than medically? Could that be prohibited? There is a myriad of unanswered questions for the trial judges to grapple with and it will be interesting to see where it all ends up.

Footnotes:

[i] In Re Alexis E. 171 Cal. App. 4th 438 (2009)

[ii] Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010)

[iii] See, e.g., California Health and Safety Code Section 11362.84.  “The status and conduct of a qualified patient who acts in accordance with the Compassionate Use Act shall not, by itself, be used to restrict or abridge custodial or parental rights to minor children in any action or proceeding under the jurisdiction of family or juvenile court.”

[iv] Ingraham, Christopher, “Trump’s pick for attorney general: ‘Good people don’t smoke marijuana’,” The Washington Post (Nov. 11, 2016).