California has legalized the recreational use of cannabis by adults age 21 and older, but the substance still cannot be used everywhere without restriction. When children are present, using marijuana can have serious legal consequences. A lawyer consultation with a California lawyer would give a person a clear picture of current California law regarding the use of marijuana and children.
While the recreational use of marijuana is legal, California law on weed still strictly regulates where and how adults can consume it. Specifically, an individual may not smoke or vaporize marijuana in public places. The law bans consumption in places in which smoking tobacco is banned.
Perhaps most importantly, under smoking-in-front-of-child law, it is illegal to smoke or vaporize cannabis in the presence of a minor, a person under the age of 18, especially in a vehicle or any other place in which a minor could experience exposure to secondhand smoke.
Is the Use of Marijuana by a Parent Considered Child Endangerment?
Exposing a child to cannabis smoke can escalate into a criminal offense. One of the most serious possible criminal charges is child endangerment. The California Penal Code makes it illegal to willfully cause or allow a child to suffer harm or be placed in a dangerous situation.
A prosecutor could argue that smoking marijuana around a minor, particularly in an enclosed space, creates a dangerous situation, because even secondhand exposure to the smoke can have psychoactive effects. This could be considered child endangerment.
Will CPS Take My Child for Smoking Weed in California State?
The California Child Protective Services (CPS) would probably not remove a child from a parent’s home solely because the parent consumes marijuana. Personal use of marijuana in one’s home is legal in California, as is consumption of alcoholic beverages.
They would take steps to remove a child from their parents’ home only if the parent neglects or endangers their child. This neglect or child endangerment might be connected with the parent’s use of marijuana, or it might not be connected to marijuana use at all.
CPS undertakes an investigation when it receives a report that someone suspects child abuse or neglect. For example, teachers and doctors are required by law to make a report to CPS if they suspect that a child has been subjected to neglect or abuse. Because teachers and doctors are considered trusted reporters, CPS would begin investigating a report that it receives from a teacher or doctor.
Once a report is received, CPS first evaluates a report with its risk assessment tool. It weighs such factors as a child’s age, the type of abuse alleged and whether there have been reports about the child on prior occasions. The CPS would begin an investigation within 24 hours for a high-risk case.
According to CPS lawyers, the kinds of behavior that might lead the California CPS to remove a person’s child from their home are the following:
- Failing to provide the child with adequate food, clothing, shelter or medical care
- Leaving a child at home alone for extended periods of time without supervision if the child is too immature
- Physical abuse
- Severe emotional abuse, such as constantly yelling at the child or humiliating them
- Using substances or alcohol in such a way as to pose a danger to the child, e.g., driving while inebriated with the child in the car.
Again, CPS is unlikely to remove a child from their home simply because their parent uses marijuana. However, a parent may want to take certain steps in connection with their consumption of marijuana. They may want to be sure not to smoke or vaporize marijuana in the presence of their children; they want to avoid secondhand smoke exposure.
They do not want to leave paraphernalia or marijuana in any form in places in the home where children might access it. They want to make sure they do not test positive for marijuana, at work or elsewhere, and they would not want to be stopped while driving their vehicle under the influence, especially with their child in the vehicle.
Could the California State Remove a Child From the Custody of Their Parents Regardless of Marital Status or Divorce?
A parent’s marital status does not determine whether the California CPS would remove a child from the parent’s home. An individual who is not married can be a perfectly good parent. Their unmarried status alone would not be a factor in any decision regarding custody made by the CPS.
Likewise, a parent who is going through a divorce can be a perfectly good parent. The CPS does not investigate a parent for child neglect or abuse solely on the basis of the fact that they are not married or getting a divorce.
However, if a parent anticipates getting involved in a child custody dispute, they may want to review their practices for consuming marijuana and alcohol, too. If they have sole or shared custody, they want to avoid giving the other parent grounds to seek full custody in California for themselves.
They probably want to avoid the following:
- A parent should not leave paraphernalia in places in the home in which a child could gain access to it.
- A parent should limit their child’s exposure to their parents’ marijuana consumption. They should be especially careful not to smoke or vaporize marijuana when their children are present. They want to avoid exposing their children to secondhand smoke.
- A parent should keep their marijuana, in whatever form, out of reach and inaccessible to their child. They would want to be especially careful if their marijuana is in an edible form that would appeal to a child.
Another occasion when a parent’s use of marijuana might become a legal issue is when one parent seeks modification of a custody order in California. Again, if a parent is subject to a custody order and they think the other parent might want to modify the order, their marijuana consumption could be raised as an issue by the other parent. In this case, they might want to consider whether they are being careful about when and how they consume marijuana.
Would Medical Marijuana Be a Viable Defense?
In California, the consumption of marijuana by an adult does not have to be justified by medical need. Personal use of a recreational character is legal.
The most important point is to take steps as recommended to limit the exposure of an individual’s children to the marijuana itself, paraphernalia, e.g., pipes and the like, and probably also the consumption of it by their parents.
Do I Need a California Attorney for Help With Marijuana and Child Custody Issues?
If you are involved in a child custody or custody modification case and you use marijuana at home, you want to talk to a California child custody attorney. Your attorney is the one who is in the best position to review your practices and advise you on how you might need to change. The goal is to avoid having your child’s other parent make an issue out of your marijuana use to their advantage. Your lawyer can advise you on how to avoid this and protect your parental rights.
