Best Interests of the Child When Parent is a Medical Marijuana Patient?

California estimates the state has 750,000-1,125,000 medical marijuana users residing within its jurisdiction. According to the California Judicial Report in 2011 there were 452,671 family law filings and 383,547 family law dispositions in that state. How does the use of marijuana medicinally, a legal prescription drug in California, affect a parent's ability to act in the best interests of his or her child?

This is not just an issue for California. Estimates based on a Colorado registry reveal that about 1-3% of the population are registered medical marijuana users. Currently 16 states hold favorable laws for medical marijuana, and 18 states have proposals for similar programs. Marijuana is still illegal according to the federal government, but its usage by parents in states that have nonetheless legalized its usage is becoming a concern in custody dispositions.

Rachel Toberty, Regent Law J.D. Candidate 2013, provided a detailed review of this area of law to Family Law students last week. In noting California's statutory code setting forth the factors for determination of the best interests of a child

California Family Law Code Section 3011 is clear:
  • In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
  • (a) the health, safety, and welfare of the child.
  • (b) any history of abuse by one parent or any other person seeking custody against any of the following…
  • (c) the nature and amount of contact with both parents, except as provided in Section 3046.
  • (d) the habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services…
As a controlled substance, medical marijuana falls within the language in italics above that would protect the best interests of children when their parents might be medical marijuana patients. In an age of parental autonomy, discerning what is best for the child can be easily overshadowed by how an adult/parent may wish to live his or her life.

Children are afforded protection by the law, particularly in custody disputes, when parents have requested judicial intervention into the family in a situation of breakdown. When parents place their liberty interests above the best interests of their child, a judge will intervene to reorder the parenting plan to provide for the child's best as a paramount objective.

Family restoration is well served by parents who understand that providing for their child's best interests may often be in direct conflict to their own self interest, though worth the sacrifice. But when the child's well being is clearly at stake, courts will always act to protect the child, even when a parent chooses his own way, rather than what is best for the child.


  1. Law and legality is a forever increasing and changing idea, so much so that many persons choose to entirely study the history of law to stage of even PHD level.

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  2. Pat Robertson says it's ok though...

  3. When parents are abusing substances controlled or not controlled, legal or illegal it has a strong likelihood that such behavior will have an adverse impact on the children. In California, use of medical marijuana is a legal activity (with prescription)as much as it is legal for parents to consume the prescribed pills to go to sleep at night, and the antidepressant, anti-anxiety, and painkillers to get them through the day. It seems like if the goal is truly the best interest of the child, the court has a right to investigate the medical circumstances of each parent including any therapy the parent is receiving. Then the court can make a determination regarding how the parent's medical sitution may have a negative impact on the children. However, it seems unreasonable that if a parent is under a doctor's care, receiving therapy, and responsibily managing his or her condition then the parent should not be in jeopardy of losing custody or visitation with the children, because the particular substance used for therapy is marijuana. Questions like - does the parent engage in substance abuse of any kind? or does the parent demonstrate addictive behaviors? - would be of greater value in determining the best interest of the child rather than the statutory standard in existance.

  4. I spent a summer working with domestic trafficking victims in Ohio. During my time there, among many other things, I discovered that many of the women have children and at various stages of life have struggled with issues of custody of their children. Most of these women have long since been suffering from the disease of addiction. That is to say, that many of the women are in recovery and are just now beginning to learn how to be parents when they're sober. Though the circumstances are not entirely the same, the best interests of the child are the same in both instances. The relationship between a parent and a child is significantly altered when the parent is under the influence of a particular substance. Some may attempt to argue that in instances of legal medicinal use that the use of medicinal marijuana is a better alternative than chronic pain because it allows for the parent to act in the child's best interest outside of their medical issues. This argument is anything but centered around the best interests of the child. Children deserve, and it is in their best interests to have a parent that can be in the moment with them, that can enjoy them, teach them, care for them, love them, and make decisions in their best interest. This type of parenting cannot be done while under the influence of medicinal marijuana.

  5. The best interest of the child should always be set above the desires of the lifestyle a parent may wish to live. That being said, a parent who is using medical marijuana should not be denied custody of their child unless they are irresponsibly using the marijuana. There should be certain expectations these parents must maintain while medicinally using the marijuana. If they are using it when the child is not around and cannot observe the act, and the parent can also conduct themselves in a social acceptable manor they should be allowed custody of the child. The best interest of the child is to build and maintain a relationship with their parents, unless the parent is considered unsuitable. Additionally, it is being used medically and should be treated no different than any other drug that a doctor prescribes for a sick patent. It is true that a lifestyle is built around marijuana, but that does not equate to all medical marijuana users leading this type of life. The issue of whether a parent who is a medical marijuana user is suitable to gain custody over a child should be evaluated on a case by case basis.