California voters recently approved Proposition 64, legalizing the recreational use of marijuana. Regardless of one’s stance: separated mothers and fathers in a custody dispute, do not pick up the pipe just yet, and claim legalization as a defense.
Indeed, it is “the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children. . .” Family Code Section 3020(a). A major factor affecting the best interest of children is whether there is substance abuse, illegal or otherwise. Family Code Section 3011(d). This includes marijuana.
In my approximate fifty cases involving marijuana and custody, I have seen the spectrum of recommendations by evaluators and decisions by family law judges. Certain judges take a strict liability approach: marijuana usage equals no custody. Other judges tolerate marijuana usage so long as conditions precedent are met: valid prescription, non-usage around children, and paraphernalia out of reach. Yet other judges require a demonstrated nexus between marijuana usage and harm to the child before making any orders prohibiting use.
There is no bright line. And for good reason: child custody determination is as complex as a child is unique. The Court must not only address prevailing and changing law, morals and norms of substance use, but also address all other factors affecting the best interest of children: domestic violence, age, health, preference or comfort of the child, special needs, fitness of parents, habitability of residences, status quo, bonding and attachment, to name a few. A judge may treat differently a fit and involved parent who smokes marijuana twice a year on solo camping trips, than an uninvolved parent who repeatedly smokes marijuana in front of the neglected child.
One line is bright, however: while legalization of marijuana may remove the “strict liability” application in custody disputes, marijuana, like legal alcohol and prescription medication, indisputably is a drug. A drug may negatively affect one’s decision making. Impaired decision making negatively affects the best interest of the children.
In turn, a marijuana user should still assume that he or she has the practical, if not legal, burden of proving that marijuana usage and best interests of the children can coexist. When your children are at stake, is that a burden you wish to undertake?
Just as there is a line not to be crossed in Family Court with legal alcohol and prescription medication use, so will there be one with marijuana use. Given the changing laws, socials, norms and stigmas, along with the totality of factors affecting the best interests of children, we do not know where that line is or if there will be one.
My advice is always to refrain such that it is a non-issue. Thank you for reading!
