Medical Marijuana in Custody: Preventing Your Child Custody Rights from Going Up in Smoke.

Medical Marijuana is a trending treatment for a number of serious medical conditions. Although Federal law classifies marijuana or cannabis as an illegal hallucinogen, 33 state legislatures, including Pennsylvania, have enacted medicinal marijuana laws[1] including the Pennsylvania General Assembly which enacted the Medical Marijuana Act that took effect on May 17, 2016.[2]

The Medical Marijuana Act allows licensed medical professionals who meet special requirements and appear on the state registry to recommend medical marijuana as a treatment to serious medical conditions enumerated in the statute, such as cancer, epilepsy, inflammatory bowel disease, and glaucoma.[3]  Like all medications, there may be some adverse side-effects, but doctors have weighed these side effects against the potential benefits and recommended the treatment anyway. There may be special conditions placed on a patient’s medical marijuana such as limiting the duration of use or the form by which a patient may take the medicine.[4] Adhering to any requirements or limitations is important, not only to a patient’s health, but also his or her pending custody matter.

The Medical Marijuana Act itself includes a specific provision relating to child custody matters. The Act states, “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 the court in a custody proceeding”.[5] In determining the best interest of the child with respect to custody, the Court considers the  provisions of the 16 custody factors enumerated in 23 Pa. C.S.A. § 5328.

One of the sixteen factors courts consider in determining the best interest of the child is a parent’s drug use. Typically, if there is a concern about a parent’s drug use, the court may order one or both of the parties to submit to drug tests, to determine if drug or alcohol use is a problem. The courts may consider a positive drug test as a reason to limit a parent’s physical custody.

So, what happens if a parent has a medical marijuana prescription? The most important thing to remember when dealing with custody matters, is that every case is different, and the court will look at all the facts presented in your particular situation to make a decision. This means that just because a judge made a ruling in one case, does not mean he or she will rule the same way in another. Even though it is the cardinal rule for all custody matters that every case is unique, it is especially important to keep in mind when appearing before the court with a medical marijuana prescription. Because medical marijuana is still relatively new, Judges are still figuring out how to deal with it in terms of child custody.

Courts have been inclined to treat prescription marijuana like other prescriptions where the court considers the side effects of the treatment against the best inters of the child and the custody schedule. For example, if Father injured his back at work and was temporarily prescribed medication to manage his pain, the court would not, on that fact alone, limit that parent’s custodial time. However, the court may consider the side effect of those types of medications and include a provision in the order that states Father is not to be under the influence of that medication at custodial exchanges because it may impair his ability to operate his vehicle safely. If, several months later, Father is still taking pain medication or has unilaterally increased the dosage he takes without consulting his doctor, the court may consider those types of facts and decide to limit Father’s custodial time.

The same holds true for medical marijuana. While the Act clearly states that the prescription itself shall not be considered in making child custody determinations, it does not mean that it will not play a part in the over all consideration of the best interest of the child. Parents are still expected to provide appropriate care for their children and maintain their safety and well-being. If a parent’s prescription cannabis impairs a parent’s ability to care for their child, they may see a reduction in their physical custody. Furthermore, compliance with one’s prescription is important. A court can still order a parent who uses medical marijuana to submit to a drug test and the court can consider those results against the doctor recommendation as a way to check for use or abuse of the medication. In addition, there are rules regarding the storage and consumption of medical marijuana. If a parent does not comply with those rules, a judge may consider that in making a custody determination.

In addition to complying with one’s prescription, one must also comply with the current custody orders of the court. If a previous court order prohibited the use of marijuana, and then a parent obtains a medical marijuana certificate, the court can still find a parent violated a custody order even if he or she were complying with the doctor’s recommendation. The nuances of a particular case can have a significant impact on how the court treats a parent’s medical marijuana certificate.

If you are concerned about how your own medical marijuana prescription may impact your custody case, or you have concerns that your child’s other parent is misusing his or her medicinal marijuana certification, you should contact a Pennsylvania Family Law Attorney to discuss the specifics of your case.

[1] https://www.webmd.com/a-to-z-guides/qa/what-us-states-have-legalized-medical-marijuana and Comprehensive Drug Abuse Prevention and Control Act of 1970

[2] 35 P.S § 10231.101

[3] 35 Pa. C.S.A §§10231.101 – 10231.103

[4] 35 Pa. C.S.A §§ 10231.501 — 10231.510

[5] 35 Pa. C.S.A §§ 10231.2101 — 10231.2110

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