As more states move to legalize marijuana, either generally or for medicinal purposes, issues regarding its usage and child custody seem more likely to occur.

Will the right to marijuana affect child custody?

In 2010, a Colorado man lost custody of his daughter after receiving a medical marijuana card, although he never used the drug in her presence. The Colorado State Court of Appeals overturned the county court decision to require the father to submit to drug tests in order to even have unsupervised visitation. The Court of Appeals ruled that the use of marijuana when children are not present does not put the child at harm.

Other recent instances where marijuana affected child custody include child protection officers seizing the children of a couple in Michigan legally growing medicinal marijuana, and police visiting the home of a New Jersey woman after her son mentioned her hemp advocacy.

While the courts ruled in favor of the parents, these cases are examples of how marijuana legalization can bring up new challenges in child custody cases.

Addressing Child Custody Concerns

Child custody cases seek to establish the best interest of the child in their custody decisions. As legal policies towards marijuana have changed, establishing standards to determine how it intersects with the best interests of the child is extremely subjective.

Federal law still places marijuana along the lines of a Schedule I substance, which also includes heroin, psychedelic mushrooms, and peyote. Under federal law,, marijuana as a Schedule I Substance cannot legally be in a home where a child lives. Because it is illegal,t can be argued that the presence of marijuana in a home provides a reasonable threat to children even in states where it is legal.

Lawmakers in Colorado have tried to amend the laws to include language that would help define when marijuana is a threat to children. This way, the mere presence of marijuana would not be considered abuse or grounds remove custody; however, if parents were found being irresponsible with their possession or usage, police would have grounds to act.

Regardless, laws concerning marijuana use and child custody in states with legal or medicinal marijuana remain largely undefined. With the disparity between federal and state laws and the threat to safety that police and other enforcement agents may perceive, child custody cases involving parents who use or possess marijuana will begin to pave the way for future custody cases.