Going through a divorce is challenging under the best circumstances, but when there are children involved things are always more complex, and often more contentious. Every situation has its own unique dynamics, but a relatively new issue that has been introduced to custody discussions is the question of whether or not a parent can have their custody taken away or whether their chances of getting custody can be affected by their use of medical marijuana.

The state of New Jersey enacted the New Jersey Compassionate Use Medical Marijuana Act in 2010, and Pennsylvania passed a similar (though more restrictive) law in February 2018. The use of the drug for any reason could previously have been a clear issue in a custody battle previously, but the role that the legal use of the drug for medicinal purposes plays in child custody is a new and untested question.

Generally speaking, courts are averse to keeping children from parents for any reasons other than the parent is unfit, with that being defined in New Jersey as the parent conducting themselves in a way that “has a substantial adverse effect on the child.” Without a specific definition, it is generally left up to the individual court to determine whether a parent is fit “physically and psychologically” of fulfilling their role of parent while the child is in their custody.

The general consensus is that a party opposing a parent with a medical marijuana card having custody would need to prove either that the parent is so sick that they are not able to provide the care that the parent needs, or that the parent is so irresponsible with the way that they manage their medical marijuana as to make them unsafe and untrustworthy. Though the health and safety of the child is always the primary concern, it is also true that if marijuana has been prescribed by a physician for medicinal purposes, it is generally to be considered no different than any other type of medication being prescribed.

If you are a legal, responsible user of medical marijuana and you are concerned that your spouse will use your prescription and use against you in a custody hearing, you need legal representation. Contact our office today to learn more about how we can help.

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