can cannabis effect child custody rights

How Legal Marijuana Impacts Child Custody

Goldberg JonesChild Custody, Featured Content 11 Comments

It took a few tries, but Oregon legalized marijuana in 2014 when a state-wide vote approved Ballot Measure 91. This has been great for business, taxes, criminal proceedings, and general fun and games. It opened up a metaphorical can of worms, however, from a legal perspective.

Many areas felt the impact, including family law. It’s helpful to pause and ask how marijuana impacts child custody. Can you lose custody of your child for smoking weed? What about vaping? Or edibles?

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.

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.

Can You Lose Custody of Your Child for Smoking Weed?

Even years down the road, this remains 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.

how does marijuana affect child custodyWhat 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.

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.

Related Reading: Do Step-Parents Have Rights in Oregon?

How Does The Court View Cannabis?

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 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.

Related Reading: Fathers’ Rights and Child Custody: What You Need to Know

How It Impacts Child Custody Battles

Right or wrong, the public perception of the pot smoker often remains the image of a stoner slumped on the couch, chowing down on a bag of Chili Cheese Fritos, swigging Mountain Dew, engulfed by a cloud of smoke.

how does marijuana affect child custodyThis isn’t always the case in reality. Many average everyday folks smoke weed now and again, or more and more, they ‘vape‘. It is, unfortunately, a problematic 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, right? 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 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 shows it makes you a terrible parent—but it often plays a role. Fortunately, there are ways to protect your parental rights.

Related Reading: Do Criminal Charges Impact Child Custody?

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 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.

Related Reading: Unmarried Parents’ Rights

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, leave 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. Ever. 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 talk to your kids about it. Set boundaries and guidelines and make sure they’re educated on the subject.

Related Reading: How Do Criminal Charges Impact Child Custody?

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 poses 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. 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 becomes a problem in your daily life, they will likely become problems in your custody case, as it impairs 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?

Related Reading: Enforcement Proceedings: Protecting Custody Rights

What About Vaping?

More and more, instead of smoking marijuana, people choose to vape. This option has ballooned in popularity. As opposed to burning marijuana and inhaling the smoke, a device heats the cannabis until it releases the active ingredients, which are then inhaled.

There’s a debate about the relative safety of vaping as opposed to smoking. But for our purposes, let’s focus more on how it may impact a child custody case.

As this is also relatively new, there’s not much hard data. Certainly since vaping produces no smoke, that means there are none of the risks associated with second-hand smoke. That’s likely to be considered a positive by some.

That said, courts may also view this as similar to smoking cigarettes around your children in terms of safety. Others may not.

Still, more will view using marijuana around your kids in any capacity as a negative. There’s so much uncharted territory, and it varies from one case to the next, it’s next to impossible to predict how a specific judge will react.

In general, the courts will likely view marijuana consumption as marijuana consumption, no matter the delivery method. This is true whether you smoke, vape, or use edibles or other products. If it’s part of your life, it’s likely to become a topic of discussion in your custody dispute.

Related Reading: Right of First Refusal: Does it Do More Harm Than Good?

Has the Stigma Changed?

In states like ours, where marijuana is legal, the public stigma is changing. Old views remain, but they evolve as it becomes normalized.

From a strictly legal standpoint, simply using marijuana recreationally shouldn’t negatively impact your custody claim. Still, the stereotype of the lazy, forgetful stoner persists.

It’s sure to carry more weight with some people than with others, but it’s out there and you should be aware of it. Especially because you don’t always know how other people feel about the subject. You and your friends may not give it a second thought, but there remain negative associations in many circles.

Think of marijuana use in terms of alcohol. Whether you drink whiskey or wine, you’re still consuming alcohol. And though it’s legal, it can still impact your case.

If it compromises your ability as a parent, impairs your judgment, or use becomes a problem, it may pop up in court.

If you find yourself in a hotly contested custody dispute, and frequently use marijuana, it’s entirely possible your ex might try to use it against you. Again, alcohol is a good comparison point. If you spend every night in a bar, that’s likely to come up.

In short, even with legal status and changing views on the matter, since so much remains up in the air and subjective, it’s best to play it safe when it comes to marijuana use and your custody case.

Related Reading: Oregon Pet Laws: Do You Have Pet Custody Rights in Divorce?

From The Radio

Comments 11

  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. Post

      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.

  2. I have a question on whether or not if you have a prescription for medical marijuana due to a medical condition is it looked at the same? Like if you have MS or Lupus and it’s medically legal in your state, would this be under a different consideration? Most medical grades can be more CBD but can still have traces of THC and would return a positive result.

    1. Post

      Hi Marie, thanks for the question. The laws on this are pretty convoluted–far too complicated to get into here. I passed your contact information along to Colin Amos, our managing attorney. He will reach out soon and hopefully be able to address your concerns!

  3. Goldberg Jones,
    I live in MA. I am a woman. Do you know of any lawyers that could represent me in the state of MA? Please do not judge me based on my sex. I could use your help. I believe it would benefit your company to not just represent men, as stated in such on your website. It is against the law to discriminate based on ones sex. As lawyers, your team should be aware of this. Thank you very much.

    1. Post

      Hi Grace, thanks for reaching out! We represent anyone who needs our help in family law cases, both men and women, we simply focus a bit more on issues facing husbands and fathers. Unfortunately, we only practice in Washington, Oregon, and California. Massachusetts is a bit out of our circle, though I’m sure there are many wonderful attorneys who practice there. Best of luck with your search!

  4. This made me feel a little better. I’m a single mom and just got served today. My ex fiancé is filing for custody. His main defense is that I smoke weed and drink and that my kid isn’t fed bc I didn’t have a job and that she’s neglected. In reality I never smoke around my kid. It’s aleays put away. I smoke at night when she’s asleep and I never have that much put up. A small amount. And we vape but not around the baby. When I drink, which is rare, I make sure my kid is safe. And my kid is fed. She’s a lil chunky butt. My bf helped out while I didn’t have a job. I now have a job again. My ex doesn’t know that though. My court date is this month even though I got served today. So this made me feel a little better about my situation. Thank you. Ik nothing is certain, but this gave me a little faith.

    1. Post

      That sounds like a tough situation, Maria, sorry you have to deal with that. We glad we could offer at least a glimmer of hope in a dark time!

  5. Hey, Thanks for Sharing Such Nice information. I Checked Most of Your posts and Find This One is Much More Unique and Attractive.

  6. This article on how legal marijuana impacts child custody is eye-opening and informative. It delves into the complexities of a topic that often gets overlooked or misunderstood. By discussing various scenarios and providing practical advice on how to navigate custody battles involving marijuana use, the article helps shed light on an issue that affects many families. It emphasizes the importance of being mindful of the legal and social implications of marijuana use, especially in the context of child custody. Overall, the article does a great job of raising awareness and sparking conversations about a relevant and timely subject.

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