Michigan Medical Marijuana Act Clouds Family Law Proceedings
Article by Allison Sleight
Whether you are a proponent or opponent of marijuana regulation, it is hard to ignore the sweeping impact of these laws throughout the U.S. Currently, twenty-one states and the District of Columbia have legalized medical marijuana with three more states having pending legislation to do the same. Colorado and Washington have legalized marijuana for recreational use.
Michigan is a medical marijuana state and in the past couple of years the Michigan Medical Marijuana Act (MMMA) has begun to find its way into family law courtrooms around the state. Under the MMMA, a parent who is issued and possesses a medical marijuana card cannot be denied custody or visitation of a child for acting in accordance with the MMMA. The exception to this being if the parent’s behavior is such that it creates an unreasonable danger to the child that can be clearly articulated and substantiated.
The MMMA does not permit a court to independently determine whether a person is a qualifying patient. To qualify for protection a patient must apply for and obtain a medical marijuana card by providing written certification from a physician. Furthermore, the statute does not clearly define the terms “unreasonable danger” or “articulated and substantiated” nor has any court issued a decision expressly interpreting the application of those terms. This is a developing area of law, particularly with many cities and towns decriminalizing marijuana use and permitting medical and leisure consumption of marijuana.
The Michigan Court of Appeals did address what constitutes “under the influence” for a registered card holder in a criminal context. The Court held that a registered card holder is permitted to operate a vehicle while using marijuana and determined “under the influence” requires the drug to have some effect on that person and their ability to drive. The courts and the Legislature have not, however, endorsed any specific test for this purpose.
The court may review evidence to determine whether a person’s conduct related to marijuana is for the purpose of treating or alleviating the person’s medical condition or symptoms associated with that condition. If the person’s use or possession is not for that purpose and not in accordance with the MMMA, the person is not entitled to invoke the protections offered. As a result, many attorneys may and in some cases have found it necessary to test for the amount of marijuana used and argue that it exceeds the therapeutic level. In other cases, family law practitioners have found it helpful to utilize second hand smoke detection methods to determine the children’s exposure to the parent’s marijuana use.