Q: I have been married for several years, and unfortunately am now going through a divorce with my spouse. We have children, and I think we’re going to be able to work out our issues with visitation and custody. But I also smoke medical marijuana for a health condition I have. If things go sour, and we end up in court, does using medical marijuana affect my chances of getting custody of my children?
Facts and Circumstances
A: The answer to this question depends on the facts and circumstances. The Compassionate Use Act of 1996 gives “seriously ill Californians” the right to use and cultivate medical cannabis for medical use within certain guidelines. California Health & Safety Code §11362.5. The right to use medical cannabis, however, is limited just as any other right, so as not to cause harm or injury to another.
This principle applies equally to parents and minors. For example, it is legal for adults to consume alcohol and to have alcohol present in their home. However, the government may lawfully remove children from their legal guardians, should a court determine that the children have been unduly exposed to alcohol abuse or a threat or injury as a result of neglect reckless conduct. In In re Samkirtana S. (1990) 222 Cal.App.3d 1475, the appellate court held a mother’s abuse of alcohol was good cause for finding her children at risk of harm, even though use of alcohol is legal.
Generally speaking, regardless of the legality any type of smoking, be it tobacco, marijuana, or otherwise, should not be used in proximity to minors. The effects of second hand smoke to minors may very well be grounds for removal of minors from their guardians. For example, in In re Alexis E. (2009) 171 Cal.App.4th 438, the appellate court addressed a situation where the Father had used medical marijuana, with a valid recommendation, near his children in his home. The appellate court found, first, that because Father has used marijuana prior to obtaining a recommendation around his children, it was no different than any other type of illicit drug abuse. Id at 451. Second, with respect to the Father’s claim that he had a right under California state law to use medical marijuana even with his children present, the appellate court rebuked:
The children say they smell it. One of the children stated: “My dad sucks drugs; he does them all the time. It looks like daddy’s going to set a fire on the house and it stinks.” The trial court could reasonably find that Father’s use of marijuana constituted a risk of harm to the minors because of Father’s failure to protect the minors from the marijuana smoke. While it is true that the mere use of marijuana by a parent will not support a finding of risk to minors (In re David M. (2005) 134 Cal.App.4th 822, 829-830 [36 Cal.Rptr.3d 411]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345-1346 [12 Cal.Rptr.3d 572]), the risk to the minors here is not speculative. There is a risk to the children of the negative effects of second hand marijuana smoke.
Id at 451-452. This logic is consistent with principle that the laws and prohibitions against smoking tobacco apply similarly to the act of smoking marijuana. And just as second-hand tobacco smoke would be injurious to children, the appellate court found second-hand marijuana smoke was no different. However, it is still important to note that In re Alexis E. acknowledged that mere use of medical marijuana “without more” cannot support an adverse finding in dependency court. Id at 453. In other words, there must be other specific facts showing specific endangerment or potential abuse to the minors.
Issues of custody would be no different. As custody of minor children under California law is measured in the best interests of the child, the same rationale could be used against a parent who, though using medical marijuana lawfully, could endanger their children, and therefore have a greater chance at being denied custody by a court.
If you are a parent on minor children, and have questions or concerns about your use of medical marijuana and its effect on your rights as a parent, you should call legal professionals competent in both family law and medical marijuana law.
Beck Law P.C. is located in Santa Rosa and offers an entire scope of Medical Marijuana related services to clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.
Beck Law P.C. can furnish the experience and knowledge to help guide you through the complexities of California Medical Marijuana law.
Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.
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