California has always been at the forefront of progressive social change. In 1996, California became the first state to establish a medical marijuana program, allowing residents to grow and possess marijuana for personal use, so long as they had a prescription from a licensed physician (“Compassionate Use Act”). Several states followed, and in 2012, Colorado legalized marijuana for recreational use by adults over the age of 21. Though possession and use of marijuana has been legalized in several states, it remains a Schedule 1 drug (e.g. heroin, cocaine, methamphetamines) under federal law, so the line between state and federal law is very grey. So is the line between medical marijuana users and parents in California Courts.
That begs the questions, “How does the use of medical marijuana affect my child custody case?”
Whether you are the parent with a medical marijuana prescription or the other parent has the prescription, the analysis will depend on the facts and circumstances of your case. There is no hard and fast rule for the use of medical marijuana by parents involved in a custody dispute.
By way of history, the Compassionate Use Act of 1996 allows “seriously ill Californians” the right to use marijuana under certain circumstances. The right to use medical marijuana, however, is limited just as any other right, so as not to cause harm or injury to another.
This principle applies equally to parents and minors. For example, it is legal for adults to consume alcohol and to have alcohol present in their home. However, the government may lawfully remove children from their legal guardians, should a court determine that the children have been unduly exposed to alcohol abuse or a threat or injury as a result of neglect reckless conduct.
The same principle goes for the use of medical marijuana. If the Court determines that a parent’s use of medical marijuana affects their ability to care for the children or put the children in harm’s way, the court could take the children away from that parent. From a family law perspective, that could include reducing or suspending a parent’s visitation with their child.
From a criminal law perspective this could lead to child neglect or endangerment charges being filed. Child Protective Services could become involved and your children could be taken even if you are not the parent using marijuana or the use of marijuana is legal under the Compassionate Use Act.
Another consideration will be the Judge your case is assigned to. Some Judges take a very strict approach to the use of any drug when caring for children; whether that is marijuana or alcohol. The fact that a parent has a valid prescription will not make a difference to many Judges. Other Judges take a more relaxed stance on the use of medical marijuana. That is why it is important to discuss your case with an experienced family law attorney so you can understand how the particular facts of your case may be viewed by your Judge.
If you are concerned that the other parent’s use of medical marijuana is impacting their parenting ability it is important for you to take steps to protect your children. Any acquiescence to the other parent’s use of marijuana while caring for the children could be considered your approval. That is why it is important to seek the advice of an experienced family law attorney to discuss your rights.
We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
Nancy J. Bickford, a Certified Family Law Specialist (CFLS) is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin, and end, with keeping your kids where they belong: with you.