Are Medical Marijuana Users Bad Parents?

Medical marijuana is big business and more commonly accepted in all social strata.  How does it impact the family law courts.  While not the final word on the issue a recent case has shed light on how the court’s may view medical marijuana in the context of a dependency proceeding.  The trial court found that the child was placed at risk by the father’s use of medical marijuana, declared the child to be a dependent of the court under Welf. & Inst. Code, § 300, subd. (b), and entered a maintenance order. (Superior Court of Los Angeles County, No. CK50724, Stephen Marpet, Juvenile Court Referee.)

The Court of Appeal reversed the judgment as to the jurisdictional finding pertaining to the father, otherwise affirmed the judgment, and reversed the maintenance order. The court held that the Los Angeles County Department of Children and Family Services (DCSF) failed to produce sufficient evidence that the father was a substance abuser, which would have been prima facie evidence that he was unable to provide regular care for the 14-month-old child.

There was no evidence that the father failed to fulfill major role obligations at work or that he suffered from recurrent substance-related legal problems. Despite DCFS’s allegations, there was no evidence that he was under the influence of marijuana while driving his vehicle because there was no evidence of actual impairment, only of how much time had passed since he smoked. There was also no evidence that the father failed or was unable to adequately supervise or protect the child. The father possessed a valid recommendation from a physician to use marijuana for treatment of his chronic knee pain; his continuing usage and testing positive for cannabinoids on drug screens, without more, was insufficient to show that the child was at risk. And the record showed that the child was well cared for. Finally, the father should not have been ordered take random drug tests and participate in parenting courses and drug counseling.

Lesson:  The traditional approach of the courts has been to adhere to the Federal Law view that Marijuana has no medical value and is simply a street drug.  However, the times may be changing.  This doesn’t mean that in a custody battle between two parents a medical marijuana card is a free pass to party.

The case above concerned removing a child from his parent. The Juvenile Dependency Court is a branch of the Superior Court which hears cases involving allegedly neglected or abused children. In theory, the first goal of the dependency court is to preserve families by
identifying the problems that have caused the removal of the children and to offer the parents the education or counseling necessary to get the children’s care in good shape. Juvenile Court Dependency proceeding may begin with children being removed from their parents and placed in protective custody.

A dependency proceeding is very different than a custody battle in which two parents are fighting over custody. In a dependency hearing the state may take away a child from it’s family. In a custody battle one or both of the parents will have custody.  A court is still likely to be swayed negatively by drug use by one of the parents.  Medical Marijuana card or no.

Posted in Child Custody

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