Last year’s Proposition 64 passage legalized the use of recreational marijuana in California, and medical marijuana has been legal in the state for over two decades now. But that does not mean that the use of recreational or medicinal marijuana will have no negative consequences for you under the law. In addition to remaining illegal under federal law (which means that federal authorities such as the DEA can pursue criminal charges for marijuana), the use of marijuana might impact how your employer treats you. Although alcohol has been legal since the era of prohibition, that certainly does not mean employers cannot fire you for being drunk on the job or being habitually late due to hangovers. But how does marijuana use play out in a custody battle, specifically the use of medical marijuana? The answer is not always clear, although a new law could be important for parents engaged in custody battles who use medical marijuana.
Proposition 64 Includes Language About Custody Rights
While we all know that Proposition 64 legalized recreational use of marijuana for adults 21 and over, what has been less publicized is the proposition’s language regarding custody rights, which states:
“Qualified patients may not be denied child custody rights merely because of their status as medical marijuana users.”
According to media reports, some parents have claimed that they have been denied custody in the past due to their status as medical marijuana patients, but state officials whose work affects custody determinations argue that use of medical marijuana will only affect a custody determination if there is a connection between the use and the parent’s ability to care for the child.
Does Proposition 64 Change How Custody is Determined?
While the language of Proposition 64 does go straight to the issue of custody determinations, it is hard to say if it will actually have a significant impact on such decisions. Custody battles in California have long been determined based on the “best interests of the child,” and facts relating to the parents or their medical condition or use of medicinal therapies are only one factor that might be examined in deciding what custody situation serves the best interests of the child.
There are quite a few specific issues that a court will look at in determining the best interests of the child, but they can be summarized as follows:
- The child’s relationship with each parent
- The child’s needs
- The ability of each parent to provide for the needs of the child
- The child’s stated preference
Thus, a court would not be looking specifically at whether a parent uses medical marijuana but instead on how that use would affect the above factors. For example, if the court believes that a parent’s use means that they are frequently impaired cognitively or physically, then it might be persuaded that this would affect the ability of that parent to provide for the needs of the child. On the other hand, if a parent, for example, uses medical marijuana with low levels of THC and has additional help in caring for the child (i.e. the presence of a non-impaired stepparent willing to care for the child), then the court might be persuaded that the issue does not significantly the ability of the parent to provide for the child.
Judges Have Discretion in Making Custody Decisions
At any rate, the court will be looking at the totality of the circumstances between both parents and the child, and should not base its decision on any one factor. That said, judges have wide discretion in how they make custody decisions and it can be difficult to predict how they might view a specific issue. But by working with an experienced California child custody, you can present the full range of facts favorable to your custody position in light of California law.
Resolve Your Child Custody Issues With Experienced Family Law Attorneys
The family law attorneys at The Law Offices of Omar Gastelum and Associates, PLC, have many years of experience representing parents and children in child custody matters, and are dedicated to obtaining the best possible outcomes for their clients. For a free consultation regarding your child custody matter, call our offices today.