Medical Marijuana and Child Custody

In the last few weeks we have received a number of inquiries pertaining to child custody, Child Welfare Services, and medical marijuana. Americans for Safe Access has gathered and compiled information for patients affected by child custody issues as well as information on how to demonstrate that you are a good patient-parent.

http://www.safeaccessnow.org/article.php?id=5636

The rights of medical marijuana patients in the removal, dependency, and child custody contexts are still unresolved, but Americans for Safe Access (ASA) firmly believes in the right of patients to use their medicine in a responsible fashion and still be good parents. While the California Supreme Court’s January 2008 Ross v. Raging Wire decision clearly ruled that medical marijuana patients do not have rights in a civil employment context and it was not a helpful decision for patients’ rights in Family Court, Ross’s reasoning does not necessarily extend to child custody cases, which are very different and much more fact specific. Whether Child Protective Services (CPS) has removed your child, or your child’s parent is attempting to use your patient status against you, defending your rights in court (usually County Family Court, Dependency Court, or Superior Court-Family Law Division) can be very difficult, especially because many people in the system, including CPS workers and their attorneys, Family Court judges, and even public defenders can sometimes be biased against medical marijuana patient-parents. If you can, do what you need to do to not lose custody of your children.

The rights of medical marijuana patients in the removal, dependency, and child custody contexts are still unresolved, but Americans for Safe Access (ASA) firmly believes in the right of patients to use their medicine in a responsible fashion and still be good parents. While the California Supreme Court’s January 2008 Ross v. Raging Wire decision clearly ruled that medical marijuana patients do not have rights in a civil employment context and it was not a helpful decision for patients’ rights in Family Court, Ross’s reasoning does not necessarily extend to child custody cases, which are very different and much more fact specific. Whether Child Protective Services (CPS) has removed your child, or your child’s parent is attempting to use your patient status against you, defending your rights in court (usually County Family Court, Dependency Court, or Superior Court-Family Law Division) can be very difficult, especially because many people in the system, including CPS workers and their attorneys, Family Court judges, and even public defenders can sometimes be biased against medical marijuana patient-parents. If you can, do what you need to do to not lose custody of your children.

Sadly, being a parent who is a law-abiding medical marijuana patient can be a scary thing. Across the state, parents have used another parent’s medical marijuana patient status to gain an advantage in a custody battle. Unfortunately, some judges in the Family Court system are biased against parents who use medical marijuana, and they sometimes impose unreasonable conditions upon patients in order to regain custody of their children.

Try to get representation from your local Legal Aid or find a family law attorney who will represent you cheaply or for free. Because the possibility of losing custody of your child to the other parent is very serious, do the best that you can to find yourself representation that you can trust to advocate your case. Once you have a lawyer, if you are concerned about his/her knowledge of medical marijuana law and its relationship with family law, contact ASA’s Legal Services Coordinator regarding a possible strategy consultation between your attorney and ASA’s Chief Counsel. You can also use LawHelp.org or CourtInfo.CA.gov to help you locate a lawyer.

Keep us informed, by contacting ASA’s Legal Services Coordinator and explain the situation.

Make sure you include the following information:

  • Your full name and phone number and email address and the full names of your child/ren and the child/ren’s other parent
  • The County and State of your custody case
  • The condition for which you use medical marijuana.
  • Current status of the child/ren (where are they staying, who has custody, what visitation rights are there?)
  • If appropriate, were there any criminal charges related to marijuana? What is the status of your criminal case?
  • What has happened so far at Family/Dependency Court?
  • What is the child’s other parent specifically alleging is your failure in good parenting and how is it related to medical marijuana?

Make sure that you get your lawyer on your side, and get her or him to understand the difference between someone who is addicted to a wholly illegal dangerous drug like heroin, and someone who legally (under California law) uses medicine to treat a serious condition when the child is not around. Additionally, make sure that you frame your condition for your lawyer, and explain how and when it started, how it feels to you (with specific language identifying parts of your body), and how it positively affects your quality of life. Also explain your experiences with other types of medication (e.g. over the counter pain relievers, opiates, SSRI’s) and any issues you had with them. Then, explain more explicitly to your attorney how not being able to use your medical marijuana will negatively affect your quality of life. You can use ASA’s educational booklets on medical marijuana and various conditions to assist in your education. You can also discuss with your attorney various compromise proposals that demonstrate your fitness as a parent while still allowing you to use your medicine, such as pledging to the court to refrain from medicating for 6 hours before seeing the child or children, or offering to try to test under a certain nanogram level that is set high enough to allow the use of some marijuana, but low enough to discourage lesser usage. You should also consider trying to solicit letters from people who would have personal knowledge (friends, neighbors, colleagues, teachers, etc.) attesting to your caring nature, thoughtful parenting, and strong bond with your children.

You also may want to consider the history of marijuana and other drug use of the child’s other parent. If the child’s other parent is attempting to use your medical marijuana usage against you, but, during the time when you were partners, the other parent used to use marijuana recreationally, this is a relevant fact to raise in court, if appropriate. Any evidence of the child’s other parent’s current or former use of marijuana, either recreationally or medicinally, or use of other illegal drugs or prescription drugs, may be relevant, and you should bring it to the attention of your attorney, and discuss its appropriateness.

Additionally, you should definitely ask your attorney to do a thorough search of Westlaw/Lexis-Nexus for cases regarding child custody and medical marijuana. There are several Court of Appeal cases that are unpublished, the most helpful of which is In re: Michelle M. et al2007 WL 1041372 (Cal. App. 2 Dist.). On April 9, 2007, the Court of Appeal (2nd Dist) held that the Los Angeles County Juvenile Court improperly assumed jurisdiction over two children and deemed them dependents of the court because the allegations of the petition did not successfully allege a “current substantial risk the children will suffer serious physical harm as a result of their parents’ inability to supervise, protect or care for them.” See California Welfare & Institutions Code § 300(b). Unfortunately, it is important to note that this decision is unpublished (like that of a Superior Court) and therefore cannot be cited as precedential authority by your attorney in California courts. The California Courts of Appeal will sometimes issue unpublished decisions when they want to decide a certain way in a specific case, but do not wish to make published, precedential caselaw. However, your attorney can definitely attempt to learn from the successful legal strategy of the attorneys in this case, and try to achieve a similar result in yours.

Specifically, the court held that even if a father has a history of drug use, and uses marijuana recreationally (without a recommendation), unless CPS can demonstrate that, at the time of the jurisdictional hearing (and not before), “the father’s continued drug use created a ‘substantial risk’ his children would suffer ‘serious physical harm or illness,” the juvenile court should not assume jurisdiction over a child and that child should not be removed. Since there was no actual evidence of neglect (i.e., that the child was left unsupervised or unprotected), no evidence that either child ever saw the father use marijuana, and neither child had any access to any drug paraphernalia or usable marijuana, the court found that there was no evidence that the father’s drug use subjected the children to any physical harm, injury or illness, and it overturned the Superior Court order sustaining the dependency petition. The court says further, that “the purpose of dependency proceedings is to protect children, not to prosecute parents.” citing In re Alysha A. (1996) 51 Cal.App.4th 393, 397.

The court also held that a mother who possessed 3.25 oz. of marijuana and was cultivating several live marijuana plants with a current medical marijuana recommendation at the time of removal and who has ceased using medical marijuana also should not be considered to be creating a “substantial risk” that the children would suffer “serious physical harm or illness.” The court found that there was no evidence supporting a finding of the mother’s past or current conduct physically endangering the children. Specifically: That the mother possessed and cultivated a legal amount of medical marijuana, less than what is allowed by Health and Safety Code § 11352.77 “limits.” Both the Superior Court and the Court of Appeal recognized that the mother was acting legally in her use of medical marijuana under California law, and stated that the “mother’s marijuana was not ‘illicit drugs’ at all.”

While the marijuana plants were accessible to the children, plants do not contain usable marijuana, and the children did not have access to any usable marijuana.

When the jurisdictional hearing was conducted, no more marijuana plants remained at the house and no evidence indicated any plans to replant any marijuana or for mother to resume using medicinal marijuana.

While it is unfortunate and unfair that one of the factors that seems to contribute to a positive result in a CPS or custody case is a patient agreeing to cease using his or her medicine before a jurisdictional hearing, it does seem to help, both in this case, and in other anecdotal reports to ASA’s Legal Department. If you are able to cease using medical marijuana and can make it using alternative therapies, you may want to consider it as an option in a difficult case, although clearly this is not for all patients. You may also want to consider switching from medical marijuana to Marinol, and for more information on that, you can see I.E. of this FAQ.

Your attorney may also want to read these unpublished cases to review other results:

  • In re K. P. et al. 2008 WL 5063857 (Cal.App. 5 Dist.);
  • G.R. v. Superior Court 2008 WL 2445215 (Cal.App. 1 Dist.);
  • In re D.L. 2008 WL 762011 (Cal.App. 1 Dist.);
  • In re Turina J. 2006 WL 1545534 (Cal.App. 5 Dist.); &
  • In re Sean B. 2006 WL 1101626 (Cal.App. 3 Dist.).

Helpful steps to demonstrate to the court that you are a good patient-parent

Here are some precautions that patients might take to demonstrate to the court that their use of medical marijuana has not affected their ability to be good parents and that the child has not been exposed to or had access to medical marijuana. Unfortunately, none of them will guarantee success in a custody battle.

When residing in a house with a child, possess or cultivate less than your local guidelines suggest, if your condition allows.

Keep all medical marijuana out of plain sight, ideally in clearly labeled medicinal jars and with other prescription medications, in a place that children cannot access. Do not cultivate any more than is minimally necessary for your medical condition (1-2 plants is preferred, as your condition allows). If you cultivate outdoors, surround your garden surrounded with an impermeable fence that will deny access to children. If you cultivate indoors, do not include lamps or other fire hazards, and secure the garden in a locked room or devise another way to deny access to children.

If you cook with medical marijuana, clearly label any resultant food products as medicinal, and keep them far away from any children’s food.

Use discretion when medicating, and do not do so when your child is present. Specifically, think about medicating when you have several hours open before any interaction with the child or after he/she is already in bed.

If your child can understand, specifically explain to her/him that the marijuana is your medicine and that it is not for her/him (much like any other prescription medication). Furthermore, let him/her know that your patient status and medicine is a private matter, just like any other medical condition, and that he/she should not volunteer information about it to anyone.

In a dual-patient-parent household, work out a routine with your partner where one parent is always unmedicated in case any unexpected issues arise.

Never drive with your children in the car after medicating.

Consider keeping notes for yourself regarding the precautions you have taken, so that you are prepared to inform Family Court judge about them if asked.

You have no reason to inform a Family Court judge that you are a medical marijuana patient, unless directly asked about marijuana. Do not volunteer such information without cause to do so.

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