Medical Marijuana Use and Custody

Medical marijuana use is a hot topic all over the country. With so many states allowing the legal use of marijuana for medical purposes, and many legalizing the use recreationally, we will start to see more and more cases that address the use of marijuana in different areas of law. In a recent case, H.R. v. C.P. 2019 PA Super. 357, in the Pennsylvania Superior Court, this Court addressed the use of medical marijuana in a child custody matter. 

Father and Mother (H.R. and C.A.R.) met while both were students in college. Both Father and Mother struggled with substance abuse. Father's recreational use of marijuana was a recurring issue during the custody battle.

After father's and mother's relationship dissolved, pursuant to a stipulation of the parties, grandparents maintained primary physical custody after mother alleged father had fed the child a marijuana-laced graham cracker. Mother and father and grandparents all shared legal custody. Mother had physical custody of up to four hours on alternating weekends. Father had physical custody for three-hour periods of supervised visitation on alternating Saturdays. 

Father filed a motion to modify the custody stipulation. The trial court awarded grandparents physical custody pursuant to the terms of the initial stipulation except that it conditionally stopped  the supervision requirement for father's periods of visitation "upon father's willingness to demonstrate sobriety and continued abstinence."

Father filed yet another motion arguing that the current custody arrangement was contrary to the child’s best interest and that his receipt of a medical marijuana license meant that the trial court should no longer weigh his marijuana use against him. Grandparents filed their own motion challenging the findings regarding father's medical marijuana license and the reliance upon it to discount father's history of recreational drug use.

The trial court ruled that, based on the best interest factors and the concerns raised by grandparents, it would continue the prior custody arrangement and reinstate the drug testing condition for father's exercise of unsupervised custody. The trial court held that the custody officer erred in relying on father's certification that he was licensed to use medical marijuana since father failed to submit medical evidence that he had an affliction necessitating its use or the effect that his use would have on his parenting ability.

On appeal, the court affirmed the trial court's custody order. The appellate court rejected father's apparent contention that the Medical Marijuana Act barred the trial court from considering father's use of marijuana pursuant to a medical marijuana license in the trial court's best interest determination. Instead, the appellate court noted that the act expressly reaffirmed that courts could consider a parent's marijuana use in the best interest analysis. Courts can also consider a parent's use of other legal narcotics to treat chronic pain in determining whether such use impacted a child's best interest. The court held that the trial court did not abuse it discretion to consider father's marijuana use given his history of substance abuse and alleged incidents of having child ingest marijuana.

In summary, the courts are not stopped by Medical Marijuana Act from considering a parent's legal use of marijuana pursuant to medical license, particularly where parent had history of substance abuse and where there were alleged incidents of exposing the parent's child to marijuana. 

If you have questions regarding this issue, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.