Will Pot Smoking affect a Custody Determination?

Unrolled Joint
(Public Domain Image courtesy of Wikipedia)

Medical Marijuana has been legalized in Massachusetts and possession of one ounce or less, even for "recreational" use, has been decriminalized. In addition, marijuana for recreational use has been legalized in two states in 2013, and more may be on the way.

Traditionally, illegal use of marijuana by a parent could result in DCF involvement and would definitely be a factor considered by a family court if two parents were disputing custody in a divorce or paternity action. Although many parents did not see "what the big deal was", judges would often test for marijuana use and restrict parenting time for parents that tested positive.

Does the national shift towards legalization for both medicinal and recreational use mean that smoking pot should no longer be a factor in determining fitness for custody?

In an article written by Henry Gornbein when states began legalizing medicinal use, Henry wrote for the Huffington Post on this issue and made the analogy to alcohol use or abuse.

While alcohol is legal to purchase and drink, depending on your age, there are still legal restrictions. It is not legal to drive when drunk, and a parent who is drunk during their parenting time could be considered neglectful or unfit. If a parent has a serious alcohol problem, many judges will even order supervised or limited visitation with that parent. This is an appropriate analogy for how family court judges are likely to view marijuana use.

Even for medical use, and even in states where recreational use is legalized, pot smoking is likely to still carry with it some common sense restrictions. While the effects may be different than alcohol, the use of a mind-altering drug, whether an illegal drug or a legal one, can affect a parent's ability to care for their children effectively. A family court must consider the best interest and safety of the children and how marijuana use could affect that standard of care.

While results will likely vary greatly from case to case, as with alcohol abuse, it is clearly advisable for parents to avoid the use of marijuana, even if prescribed by a doctor, when children are in their care. Despite the shift towards legalization, it is likely that the use of marijuana will continue to affect custody and parenting time determinations in family courts.

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