Child custody is determined with one main goal in mind, which is the best interest of the child. This means that courts will prioritize the needs and interests of any children involved before over the interests or desires of either parent. Regardless of the state, courts will use some form of this standard when dealing with matters like child custody. 

Specifically in the cases of marijuana use by a parent, courts will take an even deeper look into the best interests of the child in such a situation. They will look at and consider factors that may have an effect on their interest, such as:

  • Whether the parent in question is using the marijuana in the presence of the child;
  • The child’s age and background and whether they are susceptible to taking the drugs for their own use;
  • How the use of marijuana may be affecting the child.

Generally, if marijuana use affects the best interests of the child, a court could limit, or even take away, that parent’s custody rights (and in some cases, visitation rights as well). Courts are generally very hesitant to take custody away from parents

However, it’s very common to designate one parent as the custodial parent (more time) and the other as non-custodial parent (less time). The amount of time available for the non-custodial parent will vary largely on the circumstances of each family.

Is the Use of Marijuana by a Parent Considered Child Endangerment?

It can be, but not always in every case. On the federal level, marijuana is classified as an illegal substance, and the use of any illegal drug in the presence of a child constitutes a “drug endangered child.” State laws conflict with federal laws in that states don’t generally have separate statutes for a “drug endangered child,” but rather have statutes governing child endangerment.

The exact definition of child endangerment will vary from state to state, but generally, all adults caring for a child have the responsibility of ensuring that the child is free from unreasonably dangerous situations. A state court will therefore typically punish an adult parent for failing to adequately protect any child put in harm’s way. 

These laws tend to be broadly applied, which means each court will look at the individual facts surrounding each case. Drug use will definitely be taken into consideration when determining whether a child was placed in danger. 

Courts will then consider a number of factors, such as:

  • Did use of the substance occur in the presence of a child?
  • Did the child have access to the drugs?
  • Was there an injury? Actual harm is not necessary, but rather, most courts will look to whether the situation could have lead to harm.
  • Did the action/situation endanger the child’s life, health, welfare, morals, or emotional well being of the child? Was the caregiver neglecting the child?
  • Did the caregiver make a mistake? Generally, courts will not punish a caregiver for making a simple mistake or misjudgment, but will look to whether the caregiver placed the child in a situation that more likely than not exposed the child to harm.

A court will likely consider smoking marijuana in the direct presence of a child and/or allowing drugs to be accessible to children endangerment. The legalization of marijuana in some states doesn’t seem to be a major factor when determining whether use is considered child endangerment. This is because some courts have tended to treat marijuana the same as they would alcohol use. Which means if the child was in a situation where they were able to easily access alcohol, then they would be in a similar situation. 

Could the State Remove a Child from the Custody of Their Parents Regardless of Marital Status or Divorce?

Absolutely. It happens quite often and usually starts with the police and local child protective services. Even in states or counties where marijuana has been legalized, parents have been arrested for use in the presence of children,regardless of their marital status. 

Most officials would consider that parental use of marijuana alone is not enough for abuse or neglect that would result in the removal of custody. However, once substance abuse by a caregiver is alleged, child protective services will get involved and will do a full evaluation of the family. 

During a home evaluation, child protective services agents will look for presence of physical abuse, sexual abuse, psychological or emotional maltreatment, neglect or deprivation; all similar to the parameters listed above. Once completed, their reports are furnished to the courts.

As mentioned, use alone is typically not enough for removal of custody. However, once the state gets involved, the process can be lengthy and courts have a lot of discretion whether or not to monitor how a parent is caring for their child.  

Would Medical Marijuana Be a Viable Defense?

Not necessarily. Regardless of whether marijuana is legal or if a person has a valid prescription for medical marijuana use; the courts are going to apply the same above-listed factors because the best interests of the child are always of utmost importance. Overall, the biggest question that remains is whether the use put the child in danger.

Even if the parent was legally prescribed marijuana for a legitimate medical reason, they must take the same precautions as they would with something like a pain medication. They must make sure the medication is securely out of the child’s reach and they take it responsibly and as prescribed.

What About in States where Marijuana is Recreationally Legal?

Many states have made marijuana legal for use for recreational purposes, not just medical purposes. As mentioned, the legal status of marijuana generally does not provide an excuse or justification for conduct that places a child in danger. Thus, the parents are not relieved of their parental responsibilities or their duty to keep their child safe simply because marijuana was made legal in their state of residence.

Many courts compare or analogize recreational marijuana use with alcohol use. Alcohol use is generally legal for adults to use, but they still must use it in a responsible manner that doesn’t endanger their child. Similarly, as more states relax marijuana laws and make it legal for medical and recreational use, parents still cannot use the substance in ways that would place the child in danger.

Do I Need an Attorney for Help with Marijuana and Child Custody Issues?

The intricacies of dealing with the court system can be overwhelming, especially when it involves the custody of your children and any issues regarding marijuana use. If you have any questions about how marijuana use could affect child custody, it’s best to speak to a child custody attorney as soon as possible. Your attorney can help provide guidance and can represent you in the event that you need to attend a court meeting.