Medical Marijuana and Custody

With medical marijuana becoming more common, both in growing and in prescriptions, it has raised the issue of the effect of medical marijuana and child custody. The general rule in California is the best interest of the child(ren). Despite having a valid prescription/license, there are an increasing number of custody disputes involving medical marijuana. This does not appear to be state specific and is becoming an issue in many states.

For example:
In Michigan, after deeming their home unsafe for a child because both parents are medical marijuana patients and marijuana growers, the state removed six month old Brielle from her parents' custody.
 http://www.wlns.com/story/23486257/state-takes-medical-marijuana-caregivers-child-away

http://www.mlive.com/lansing-news/index.ssf/2013/09/lansing_marijuana_caregiver_fi.html

In San Diego County, California, two children were removed from the home of Michael Lewis and Lauren Taylor. Lewis, a Gulf war veteran was exposed to chemicals that cause debilitating migraines has a prescription for medical marijuana. Taylor tested negative in every drug test given and there was no evidence of neglect or abuse.
http://www.courthousenews.com/2013/08/12/60182.htm

In Colorado, a couple claims that were denied custody and were not allowed to adopt their ten month old great-granddaughter because both are medical marijuana patients. The child lived with them for five months before being removed by her mother. The state intervened and placed the child in foster care.
http://www.koaa.com/news/couple-claims-they-were-denied-custody-because-of-medical-marijuana-use/#_

 Since this is a relatively new change, even though there is a steadily increasing number of medical marijuana patients and growers, there isn’t a law in California that addresses medical marijuana specifically.   While there is no set definition of "best interest of the child", a court uses a set of factors to make this determination, as well as any other information it deems relevant.  One of the factors used in deciding the best interest of the child(ren) is the "habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent" (Family Code 3011(d)). For now, it’s best to treat medical marijuana use like any other prescription medication. The general "rules" for prescription medication apply here, such as do not smoke in front of the children, keep it in a safe place out of reach of the children, do not ingest so much that you will be unable to properly care for the children, do not drive the children while under the influence, and so on.

Parents and Pot: Michigan

It seems that under Michigan's Medical Marijuana Act, a parent may not be denied custody or visitation of a minor for acting in accordance with the act [i.e., possessing pot with a properly issued "registry identification card"] unless his or her behavior is such that it creates an "unreasonable danger to the minor which can be clearly articulated and substantiated".


The Michigan Court of Appeal, in addressing other issues under the MMMA, opined that their Act was "inartfully" [polite for "terribly"] drafted.

Given the vast proliferation of "medical marijuana clinics" "dispensaries", and "cooperatives" in California, I'll be extremely interested to see what California, which also has a MMA, will do with the issue in the context of child custody litigation.

A post-Labor Day [felt] fedora tip to Jeanne M. Hannah for the pointer.