Medical Marijuana and Child Custody

Medical marijuana has been legal in California since 1996, when it was the very first state to establish a medical marijuana program. According to California law, residents can grow marijuana plants and possess the drug for personal use if they have a prescription from a licensed physician.

After the passing of Proposition 64 in 2016, recreational marijuana is also legal in the state of California. Yet in this progressive state, many parents still run into a significant issue during child custody disputes – does medical marijuana affect the odds of getting custody and/or visitation rights?

Federal Marijuana Laws and Child Custody

The legalization of marijuana is a tricky subject. Although it is technically legal by the state’s standards, it is still an illegal Schedule 1 drug according to the federal government. This means that a dispensary or an individual may still get into legal trouble for growing, possessing, selling, or using medical marijuana in California. Note, however, that federal intervention into individual use is highly unlikely, as the government saves its energy for large dispensaries and dealers.

The fact remains that medical marijuana is federally illegal, and therefore the subject of marijuana and child custody is a gray area. There is no black and white answer to whether medical marijuana will affect child custody determinations. The courts will decide on a case-by-case basis, according to what is in the best interests of the child. The courts look at factors such as:

  • Age of the child
  • Child’s health
  • Relationship between the parent and child
  • Ability of the parent to care for the child
  • History of domestic abuse
  • History of substance abuse
  • Child’s ties to home, community, and school

Learn more about how the California courts make custody decisions. The most important factors when considering medical marijuana would be any history of substance abuse and the parent’s ability to care for the child and offer a safe, healthy environment. It is logical to assume that if the parent uses medical marijuana within the guidelines of a prescription for a legitimate medical problem, and that marijuana use does not negatively affect the child’s level of care, a judge will not bar the parent from custody or visitation. However, it is entirely up to the judge’s discretion.

Don’t Undertake a Child Custody Dispute Alone

There is no hard and fast rule for medical marijuana use and child custody determinations. Some judges take a very strict approach to the use of medical marijuana. A valid prescription may mean nothing if a judge is against the use of marijuana and/or believes it will affect childcare. Other judges may be more lenient, and assess each individual situation despite medical marijuana use. It’s important to engage a competent lawyer during divorce and child custody proceedings.

An attorney can help support your fight for custody, giving the judge evidence of your competence and care as a parent. If you are a parent trying to keep your children safe from an environment where medical marijuana use will negatively impact the child, a lawyer can help in this situation as well. No matter what side of the spectrum you’re on, a lawyer can help you prove your case to a judge.

An experienced family law lawyer can help you understand how a judge may view the facts of your case. If a judge ruled that you should not see your child, or receive only limited or supervised visitation rights, due to medical marijuana use, you do have the opportunity to change the arrangement in the future. The safety and care of your children is what’s most important during custody battles.