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Legal marijuana use can still have custody implications

Dear Clients and Friends,

As more and more states have decriminalized marijuana use, an increasing number of parents have opted to partake. It’s important however, to be aware that cannabis use could potentially impact your child custody arrangements as a recent ruling out of New Jersey illustrates.

In 2020 New Jersey passed a bill legalizing medical and recreational marijuana. Not long after, state child welfare authorities instituted proceedings to terminate the parental rights of a couple that they claimed could not adequately care for their school-aged child as a result of their marijuana use.

A family court judge ruled in the state’s favor and ordered that the children be given to foster parents. While the judge ruled that way based on a number of factors, the fact that the parents smoked marijuana regularly while caring for the child was part of the analysis.

In appealing the decision, the parents argued that because of the new state laws, a court could not hold their cannabis use against them.

The New Jersey Court of Appeals disagreed.

The court said that even before the new law was enacted, the state had never taken children away from their parents strictly because they smoked marijuana. But the impact of the marijuana use could be a key factor. Post-legalization, while a judge could not rely exclusively on parents’ recreational or medical marijuana use as the reason for terminating parental rights, it could still rely on it as a major consideration when there was substantial evidence that the marijuana use was actually endangering the health, safety and welfare of the child.

Cannabis and custody laws differ from state to state and we continue to suggest that matters of this nature, and in all legal phases of any Family Law upset in your lives, that (at no cost to you) you check with us to see if we can be of help.



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