Fire It Up: How Legal Marijuana Impacts Child Custody

Mary Beth Child Custody, Featured Posts 3 Comments

Legalized marijuana has been a game changer in the increasing number of states to sanction cannabis. In 2012, Washington and Colorado became the first states to allow adults to possess small amounts for recreational use. It took a few tries, but Oregon followed suit in 2014 when a vote approved Ballot Measure 91. While this has been great for business, taxes, criminal proceedings, and general fun and games, it opened up a metaphorical can of worms from a legal perspective. It’s helpful to pause and ask how marijuana impacts child custody.

Even as more and more states vote for legalization, marijuana remains illegal on a federal level. Who can purchase it, where it’s sold, and when it can be used are heavily regulated. Despite a new aboveboard status—at least as far as many states are concerned—and the fact that you can buy pot at one of the countless retail stores that pop up overnight like wild mushrooms, there remains a negative air around the topic. And it can have an impact when it comes to custody battles.

After legalization, prosecutors were quick to drop most pending misdemeanor possession cases. On the family court side of things, however, it continues to be an issue.

How Legal Marijuana Impacts Child Custody

This is still largely uncharted territory. As a result, there’s not a ton of information when it comes to how legal marijuana impacts child custody battles. At least when it comes to statistics and hard numbers.

What we do have to go on is an ever-increasing pool of anecdotal evidence from around the country. We hear horror stories of parents losing custody of their children for growing a handful of legal plants. Or Child Protective Services pays a visit because one parent picked up a medical marijuana card. A quick Google search is enough to make a parent’s blood run cold at the mere thought of what can happen.

Many of these cases ultimately work out, but this is a harrowing experience no parent wants to go through. Though the courts may rule these children were in no imminent danger, such cautionary tales are indicative of the shady gray zone legal marijuana currently inhabits. Especially when a case involves minor children.

If you’re a parent who indulges, it’s in your best interest to know how marijuana use, legal or otherwise, may impact your custody situation in divorce and separation.

How Courts View Marijuana

On a purely academic level, legal marijuana impacts child custody similarly to alcohol consumption. As you’re probably aware, however, the courts don’t always treat the two substances the same way. There’s a wide variance when it comes to how these cases play out.

You may very well encounter a judge who’s sympathetic to your plight. But it’s entirely possible you’ll pull one with more of a hardline stance. Depending on the players, the results can swing wildly from one case to another.

How Marijuana Impacts Child Custody Battles

Right or wrong, the public perception of the pot smoker is often still the image of a stoned guy slumped on the couch, going to town on a bag of Chili Cheese Fritos, swigging a Mountain Dew, engulfed by a cloud of smoke.

This isn’t always the case in reality. Many average everyday folks smoke weed now and again. It is, unfortunately, a difficult stereotype to get around. Especially as federal law still views marijuana as a Schedule 1 drug—the same category as heroin and LSD. There’s a seedy stigma that’s hard to shake.

Child custody battles are rarely pleasant to begin with. If you and your ex got along like gangbusters, you’d probably still be together. And since the point is to prove you’re the more capable parent, things often get downright nasty. Name-calling and attempts at character assassination are commonplace. If you use marijuana on a regular basis, it’s entirely possible your ex may present that as an example of why you’re not a fit guardian.

Marijuana use may have zero impact on your ability to care for and protect your children, but it can still play a part in who gets custody. Whether or not there’s any truth to these claims, if you’re in a tense, hostile custody fight, the fact that you smoke weed may be used to defame your character.

In an ideal situation, using marijuana recreationally shouldn’t lose you custody of your kids. But we don’t live in a perfect world, do we? It likely won’t be the sole deciding factor—unless you smoke a ludicrous amount and your ex can show that it makes you terrible parent—but it often plays a role. Fortunately, there are ways you can shield and protect your parental rights.

How To Protect Child Custody Rights

If you use common sense, recreational marijuana use shouldn’t become a real issue in your child custody case.

Don’t get high around your kids. If you know you need to look after them for the afternoon, stay sober while you do it.

Even if you’re only an occasional user, limit access to your stash. Keep paraphernalia locked away, or at least out of the easy reach of any kids who may be around. If you have any edibles in your possession, make sure they’re not someplace the youngsters will find them while looking for a tasty afternoon snack. No one wants to experience the horrifying realization that the brownie your son or daughter just polished off isn’t of the kid-friendly variety.

In short, don’t be careless.

Comparisons For Marijuana Use

If you’re looking for a guiding framework for how marijuana impacts child custody, alcohol is a good place to start. A beer here and there is fine. But if it negatively affects your ability to care for your children, it becomes a liability in your quest for custody. If smoking weed impairs you to the point where you can’t effectively look after your kids, consider leaving the bong in the closet.

Like with cigarettes, the people with the power to decide how much you get to see your kids won’t view smoking weed around your wards in a favorable light. And it should go without saying, if you’re high, never get behind the wheel of a car. It’s obviously totally unsafe and reckless, but if you think your ex won’t use a DUI against you in a hotly contested custody fight, you’re in for a cold slap of reality.

As with any controlled substance, your best bet may be to actually talk to your kids about it. Set boundaries and guidelines and make sure they’re educated on the subject.

Substance Abuse and Child Custody

Up to this point, the discussion has generally revolved around the impact of occasional marijuana use. If there’s more habitual consumption involved, that may be a more significant problem.

No matter what the drug or its legal standing—be it cocaine, meth, or alcohol—substance abuse and dependency will have something to say about who ultimately ends up with custody. And marijuana is no different.

Just because it’s legal in Oregon and you’re able to stroll down the block and pick it up at that new pot shop, doesn’t safeguard you from the consequences. You can buy booze at every corner store in America. But if overindulgence or addiction become problems in your daily life, they will likely become problems in your custody case, as it will impair your abilities as a parent, guardian, and caretaker.

There are no set-in-stone guidelines or regulations when it comes to figuring out if and how marijuana impacts child custody cases. Realistically, the practical application of the law varies from judge to judge and court to court. Each case plays out according to the peculiarities of those involved. Maybe it won’t come up at all, but maybe your ex will try to nail your hide to the wall.

Though it’s legal in Oregon, and may only be an occasional indulgence, be aware of the ways marijuana impacts child custody. Don’t give the other side any additional tools to use against you. Leave the bong in storage if you think it may play a role, at least until you have an answer. If it helps you get custody of your kids, isn’t that worth the sacrifice?

If you have questions about how marijuana impacts child custody, feel free to contact Goldberg Jones at our Portland office.

Comments 3

  1. I have paperwork from a judge 4 years ago from my ex saying I had to do a hair test for pot, know out of the blue my ex is being silly and saying I need to go do a hair sample, it is legal on Oregon, I’m a single mom who works for the school district, raise my kids on a small paycheck, smoke a little weed at night before bed I confronted dad about he fought to have his kids for 2 nights a week and hasn’t for over 4 years, I begged him to do it figure out how to get them off to school, figure out babysitters on his ,2 days the normal stuff w kids and all he could say was I need to go get my hair checked for THC, after I’ve been raising his kids w out h doing what he requested in raising his kids for 2 days a week!, we have been sleeping together for the last ,,3 Years he does not live w me, he doesn’t even have a bedroom or beds for the kids at his house I think if he cared he would of done that a few years back, he’s a good dad who I think loves his kids but has never really raised kids, I have an adult child I’ve raised and have a good idea how it goes, please help me I need advise!

    1. Hi Lillian, thanks for reaching out! That’s a tough situation, too complicated to get into here. I passed your contact information along to Colin Amos, our managing attorney. He will reach out to you soon with a better answer.

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