The Effect of Marijuana Use in a Child Custody Case

With the passing of the Medical Marijuana Act, many people have lightened in their views of marijuana use. However, we still advise our clients to be smart in how they store, ingest, or otherwise use medical marijuana since it could still have substantial impacts on their legal matters. In the context of this article, the focus is primarily on child custody. However, these recommendations can be important for other instances as well.

In 2019, the Pennsylvania Superior Court addressed a father’s appeal from a Trial Court’s decision to severely limit his custody rights. In the father’s appeal, he argued that the Court was not permitted to weigh the fact of his marijuana use against him due to him having a medical marijuana license. This case is H.R. and C.A.R. v. C.P. and J.M., 224 A.3d 729 (Pa.Super. 2019).

The child was born in 2009, while mother and father were in a relationship. It was well established that mother and father used marijuana recreationally. In 2012, mother and father agreed for the maternal grandparents to have primary physical custody by signing a stipulation and agreement with the grandparents. They did so after a serious allegation that father had given food laced with marijuana to the child.

In 2014, father filed a motion to modify the previous custody agreement. After a custody trial, father was awarded periods of unsupervised custody every other Saturday for three (3) hours contingent upon father’s willingness to demonstrate sobriety and continued abstinence through the submission of hair follicle tests. This Order remained for several years.

Then, in 2018, father again filed to modify custody after he obtained medical marijuana license to manage his wrist pain. In short, father argued that marijuana was now a state recognized medicine and should not be used to keep children from parents. After a hearing, the Trial Court refused to increase father’s custodial time and maintained the requirement for regular drug testing. The Court concluded that a review of the custody factors and safety concerns of the child was the justification for its ruling. Of further relevance was a lack of expert testimony to verify that father needed medical marijuana to treat his wrist pain and that this use would not have an impact on his ability to parent his child.

On appeal, the Superior Court pointed to an important section of the Medical Marijuana Act, which provides – “The fact that an individual is certified to use medical marijuana and acting in accordance with this act shall not by itself be considered by a court in a custody proceeding. In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 shall apply.” (35 P.S. § 10231.2103(c)).

In the end, the Superior Court upheld the Trial Court’s decision limiting father’s custody. While the law does protect against unfair prejudice for obtaining a medical marijuana license for responsible use, the Court may also make safety decisions if the license holder is unsafe.

So, what does this all mean? In our experience, it means that any parent who possesses and uses medical marijuana needs to be vigilant in insuring that their child is not exposed to it. There are dozens of studies that reveal the health concerns for children exposed to marijuana and that needs to be treated seriously.

If you or anyone you know has questions about child custody and marijuana use, please contact our office at 717-358-0600 to schedule a consult with an experience child custody attorney.