Smoking Weed or Marijuana in Front of Child Law

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

Child endangerment is a crime that may refer to when a parent puts their minor child in a situation where death or serious injury is likely to occur. Although the definition of child endangerment will vary based on individual state laws, all parents are responsible for making sure that their child is kept out of unreasonably dangerous situations. Thus, a court may penalize a parent for failing to protect their child and endangering them. 

Whether child endangerment may apply to marijuana use will depend on the facts surrounding each case. For example, a court will most likely deem that blowing marijuana smoke at a child or consistently smoking marijuana in the presence of a child would constitute child endangerment. This is similar to how courts will view parents who consume alcohol irresponsibly or store alcohol in a location that is easily accessible by the child.

In applying this rationale, then it is possible that marijuana use may be included as an activity that would qualify as child endangerment. Some other factors that a court may consider in deciding such cases are whether a child was injured and if the child had access to the drugs.

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

A state may remove a child from the custody of their parents regardless of marital status or divorce. Such cases will usually begin with the police before a state agency is called. Whether the CPS get involved for weed, will depend on factors like the amount of danger or harm that a child is exposed to due to a parent’s marijuana use or the number of incidents reported to the police.

Even in states where marijuana is legal, parents have still been arrested for using marijuana in front of their child. The parents’ marital status or divorce is mostly irrelevant in this scenario.

However, many officials would not consider the use of marijuana by itself to be enough to charge a parent with the type of child abuse or child neglect that would warrant the removal of custodial rights. If a parent is accused of substance abuse though, then CPS may step in and conduct a full assessment of a child’s home environment and/or parental figures.

During a home evaluation, agents from an agency like CPS will search for evidence of physical, sexual, psychological, or emotional abuse towards a child. They may also look for signs of neglect or deprivation. Their findings will then be compiled in a report that is sent to the court for further examination. The court will have discretion over whether to order CPS to monitor or conduct periodic checks of how a parent continues to care for their child. 

Would Medical Marijuana Be a Viable Defense?

Medicinal marijuana is marijuana that has been legally prescribed by a doctor for a legitimate medical reason. Similar to recreational marijuana, however, medical marijuana would not be a viable defense in a child custody case. Whether the use of marijuana is for medicinal or recreational purposes, will have no bearing on a court’s decision. 

The same can be said of marijuana use even in states where it already has been legalized. The court will make its decision based on the factors discussed above and in accordance with the guidelines set out by the child’s best interest standard.

The most important factor that a court will analyze is whether a parent’s use of marijuana places the child in any sort of danger. Thus, even if a parent is legally prescribed medicinal marijuana for a legitimate medical condition, the parent must take the same precautions as they would with another potentially dangerous substance, such as pain medication. 

For example, they would need to make sure their marijuana was securely stored or out of their child’s reach, and must use it responsibly or as their physician prescribed. Otherwise, it truly makes no difference to a court whether marijuana is legally prescribed or not when awarding child custody.

What About in States where Marijuana is Recreationally Legal?

Recently, many states have begun legalizing recreational marijuana, as opposed to marijuana that is only used for medical purposes. However, the legal status of marijuana in a particular state will have no bearing on the court’s decision in awarding child custody. 

In other words, even if recreational marijuana is legal in the parent’s state, this usually will not be a good enough reason to justify engaging in drug activities that could potentially endanger or do harm to their child.

Accordingly, a parent who uses recreational marijuana in a state where it has been deemed legal will not simply be relieved of their parental duty to keep their child safe and free from harm. Instead, courts in such states will typically compare recreational marijuana use to that of alcohol consumption. 

For instance, while it is legal for adults to consume alcohol, they must do so in a responsible manner and in a way that will not hurt their child. This same rationale can be applied to states that have relaxed marijuana laws. Therefore, even in states where recreational marijuana use is legalized, it can still affect the safety of a child and thus a parent’s child custody rights or arrangements.

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

Standard child custody issues are hard enough to resolve on their own, but when coupled with a drug-related matter, these cases will only become more complicated. Thus, to ensure that your parental rights are preserved on both issues, you may want to consider hiring a local child custody lawyer for further legal guidance as soon as possible. 

An experienced child custody lawyer will not only be able to assist you in navigating the laws and legal procedures affecting your right to obtain child custody, but can also defend you and your interests against accusations of habitual drug use and/or improperly administered drug tests.

In addition, if you have already failed a drug test in the past and are looking to regain custody over your child after completing a drug treatment program, your lawyer can help you file a petition to modify you and your spouse’s child custody arrangement with the court. 

Lastly, your lawyer can also present an argument on your behalf in front of a judge on why your child custody rights should be restored.


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