How does Recreational and Medicinal Marijuana Use Impact my Custody and Visitation in California?

In California, an adult person is legally allowed to use cannabis for medical or recreational purposes. Though marijuana consumption is legal under state law, it is still considered a Schedule I drug under federal law.

While California law permits the responsible use of the drug, if a parent is a “Substance Abuser” their custody and visitation rights could be negatively impacted.

What is the primary consideration in child custody cases related to Marijuana use?

California courts are charged with determining the “Best Interest of the Child.” One factor that California courts consider in determining a child’s best interest is whether on parent has a history of drug or alcohol abuse. Similar to alcohol, marijuana use is legal in California under certain circumstances. However, abuse of the legal right to use either alcohol or marijuana can result in the court finding a parent’s ability to care for their child is impacted. Such a finding could result in loss of custody and visitation.

Can the other parent raise the question of the history of use of legal drugs in the child custody case? Yes! In the case of re Alexis E., 171 Cal.App.4th 438 (2009), the court held that any person including the other parent can raise the issue of the history of drug use in a custody case or a child dependency proceedings.

Further, in a custody case, the other parent may contend that the habitual drug use of the other parent may impede them to properly take care of the children. If the court finds that the habitual drug use of a parent is not in consonance with the best interest of the child, they can give the custody to the other parent.

If such drug use hinders the ability of the parent to provide a safe, protected, and guarded environment to this child then it will amount to substance abuse. On the other hand, if such drug use does not prevent the parent from looking after their children then it will be a case of substance use and not substance abuse.

What are the crucial factors considered by the court while hearing a child custody case involving alcohol or drug using parents?

Primarily, the court considers the impact of alcohol or drugs on the parenting abilities of the parent and whether the use of these items restrains the parents from taking care of the child. Also, the court examines the history of violence or abuse committed by the parent.

The courts further consider whether the parent consumes the drugs or the alcohol in front of the children. The California Health and Safety Code dictates that the parents cannot smoke in the presence of a minor child. Consequently, the courts do not encourage smoking in front of the children and may pass a detrimental judgment.

The court will consider whether the use of a legal drug may constitute “Substance Abuse”. The court is legally obligated to provide adequate protection and safety to a child exposed to the risk of harm. In multiple cases, the court has opined that such “Substance Use” will be deemed to be “Substance Abuse” when it leads to child neglect, exploitation, and abuse. Further, the use of medical or legal marijuana may be deemed to be substance abuse if it exposes the children to the risk of harm or injury.

Also, the California Welfare and Institution Code impose upon the parent the duty to ensure that the living environment of the children is free from the negative impact of substance abuse.

Consequently, the court has held that exposure to second-hand marijuana smoke impedes the creation of a safe and protected environment for the children and the court may terminate the custody rights of the parent.

So, what is substance abuse? In the case of Jennifer A. v. Superior Court [(2004) 117 Cal.App.4th 1322], the court opined that law does not provide a definition for substance abuse for the purpose of child dependency proceedings.

Consequently, in this case, the court gave a definition to the term and stated that substance abuse will be established if in the opinion of a medical professional the parent has committed a substance abuse or the parent’s drug use comes within the purview of substance abuse as defined in the DSM-IV-TR.

But, in the case of Drake M [(December 5, 2012) 211 Cal.App.4th 754.], the court differentiated between “Substance Use” and “Substance Abuse” on the following grounds –

  1. If such drug use hinders the ability of the parent to provide a safe, protected, and guarded environment to this child then it will amount to substance abuse. On the other hand, if such drug use does not prevent the parent from looking after their children then it will be a case of substance use and not substance abuse.
  • If such drug use exposes the children to a serious risk of injury, harm, or peril then such drug use will be substance abuse. It is not relevant whether the injury was physical, mental, or emotional.

From the above discussion, we can conclude that the courts examine the parent’s history of drug use while deciding the issue of the custody of their child. It reviews the impact of such drug use on the parenting ability of the parents. Also, it considers whether such drug use is exposing the children to neglect, ill-treatment, or abuse. If the court thinks that the conduct of the parent is endangering the children, the court may terminate their custody rights.     

Written by Vincent A. Gorski

Vincent Gorski is a Bakersfield California Family Law and Bankruptcy lawyer. He is the founder of The Gorski Firm and assists clients in complex and routine family law and bankruptcy issues. He was licensed to practice in Indiana in 2007 and California in 2009. He regularly writes on topics related to Bankruptcy and Family Law issues (divorce, custody, visitation, support, property division, etc.)

June 7, 2021

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