Does a Parent’s Legal Use of Marijuana Jeopardize Custody Rights?

parent_marijuana_child_custodyAmerican attitudes towards marijuana are changing, and an increasing number of states, including Michigan, have enacted laws legalizing medicinal and recreational use. Despite these developments, can a parent who lawfully uses marijuana be assured that it won’t impact his or her child custody rights?

Custody Considerations and Standards for Child Welfare

Under Michigan family law, the primary goal of every child custody proceeding is to determine the best interests of the child and establish a custodial arrangement that best serves those interests. Common custodial agreements award one parent as custodial (more time) and the other as non-custodial (less time), although shared custody arrangements are becoming more common. The amount of time the non-custodial parent spends with the child will vary widely depending on the circumstances of each family’s situation.

The Michigan Medical Marihuana Act (MMMA), enacted in 2008, specifically addressed this issue:

“A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

Ten years later in November 2018, Michigan voters passed Proposition 1, making it legal for people to use marijuana recreationally and adopting the MMMA language almost verbatim:

“A person shall not be denied custody of or visitation with a minor for conduct that is permitted by this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

Where possessing or using marijuana may previously have been considered child endangerment, that is technically no longer the case, although parents, guardians, and caregivers continue to ensure that a child in their care or custody is free from unreasonably dangerous situations. Some courts may – and perhaps should – consider marijuana use in the same context as alcohol and prescription medications, examining how a parent uses the drug and the possible effects on the child’s health, welfare, safety, and well-being. Given the exception for “unreasonable danger to the minor,” such consideration would clearly fall within a judge’s purview.

No meaningful appellate interpretation of the MMMA exists, and because the Michigan Regulation and Taxation of Marihuana Act (the formal name of the marijuana legalization law that takes effect on December 6, 2018) has yet to be tested, common sense may provide the best guidelines for parents:

  • Don’t use marijuana in your child’s presence;
  • Don’t use marijuana if you will later be under the influence while driving your child in a vehicle;
  • Store your marijuana safely away from your child;
  • Be smart about your use of marijuana, even in your child’s absence.

If you have questions about your legal use of marijuana and its impact on your custody rights, or if you are concerned that the parent of your child is using marijuana in a way that endangers your child, please contact us today to discuss the situation.

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