How Marijuana Affects the Best Interests of the Child

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What Happens to Child Custody If One Spouse is Using Marijuana During a Divorce?

Child custody is determined with one goal in mind and that’s the best interest of the child.  Regardless of the state, courts will use some form of this standard. Specifically in the cases of marijuana use, courts will take an even deeper look in to the best interests of the child and look at factors that may have an effect on their interest:

Generally, if marijuana use affects the best interests of the child, a court could limit, or even take away, that parent’s custody.  Courts are typically hesitant to take custody away from parents, but it’s very common to award one parent as the custodial (more time) and the other as non-custodial (less time).  The amount of time of the non-custodial parent will vary largely on the circumstances of each family.

Is the Use of Marijuana Considered Child Endangerment?

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

The definition of child endangerment varies from state to state, but generally, all adults caring for a child have the responsibility of ensuring the child is free from unreasonably dangerous situations.  A state court will therefore punish an adult for failing to adequately protect any child put in harms way.  These laws are broadly applied, which means each court will look at the individual facts surrounding each case. Drug use will be taken into consideration when determining whether a child was placed in danger.  Courts consider a number of factors, such as:

A court will likely consider smoking marijuana in the 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 factor when determining whether use is considered child endangerment, as some courts have tended to treat marijuana the same as they would alcohol use.

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

Absolutely. It happens quite often and starts with the police and local child protective services.  Even where marijuana has been legalized, parents, regardless of their marital status, have been arrested for use in the presence of children. Most officials say that parental use of marijuana alone is not enough for abuse or neglect that would result in the removal of custody, but once substance abuse by a caregiver is alleged, child protective services will get involved and do a full evaluation of the family. 

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

As mentioned, use alone is not enough for removal of custody.  However, once the state is 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.  Parents generally have to jump through a lot of hoops to get their case closed with no further interference from the court.

Would Medical Marijuana Be a Viable Defense?

Not really. Regardless of whether marijuana is legal or a person has a 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.  At the end of the day, the biggest question that remains is whether the use, recreational or medical, put the child in danger.

Do I Need an Attorney?

Yes.  The intricacies of dealing with the court system can be overwhelming, especially when it involves the custody of your children.  If you have questions about how marijuana use could affect child custody, it’s best to speak to a family law attorney as soon as possible.

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Last Modified: 06-06-2017 12:44 AM PDT

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