Recently, laws about medical marijuana have been changing more than ever. In California, medical marijuana is lawful and becoming increasingly common to treat certain illnesses. Some divorced parents are wondering, does legally partaking in medical marijuana use affect child custody? The answer to this depends on the facts of each individual circumstance.
Under the Compassionate Use Act of 1996, “seriously ill Californians” have the right to use and cultivate medical marijuana for medical use, within certain parameters. The right to use medical marijuana is limited to protect harm or injury, similar to the right to consume alcohol. For instance, adults can legally consume alcohol and have it in their homes, but the government can still lawfully remove children from their parent’s home if a court determines that the children’s safety is threatened due to alcohol exposure or reckless conduct.
As a general rule, smoking of any kind should not occur near minors. Exposure to second-hand smoke is dangerous, and it could warrant removal of the child from your household. In In re Alexis E. (2009) 171 Cal.App.4th 438, a father had the legal right to use medical marijuana in his home and near his children. However, the appellate court ruled that, since he had smoked marijuana near his children before he had the legal right to do so, the situation should be treated the same as a situation involving illicit drug use.
What’s more, the father argued that he had the legal right under California state law to use medical marijuana, even with his children present. However, the court rebuked because of the circumstances. In court, one of the children stated, “my dad sucks drugs. He does them all the time. It looks like daddy’s going to set a fire on the house and it stinks.” So, the trial court could reasonably argue that the father’s marijuana use was harmful to the children. This is because there was evidence to support there was risk to the children. Medical marijuana use by a parent alone is not enough to constitute a risk, and will not always warrant removal of the child from the home.
A court might rule that a child is at risk for the same reason a child would be at risk if their parent’s smoke cigarettes; second hand smoke is dangerous. However, in the previous case it was acknowledged that medical marijuana use “without more” cannot support adverse finding in dependency court.
No matter what, issues of custody are determined by identifying the best interests of the child. If it is found that the parent’s medical marijuana use is not consistent with the best interests of the child, then the child could be removed from the guardian’s home, or be denied custody in court. If the child is found to be endangered, the parent could be denied custody in court, even if their medical marijuana use is lawful. For more information on custody and the best interests of a child, consult an experienced family law attorney.