By Bruce Shapiro
Allegations of drug use, particularly marijuana, have been common in child custody battles for a long time. Even before the recent decriminalization and use of medical marijuana, different family court judges had difference tolerances for use of the drug. Some would take the position it is an illegal drug and therefore come down on the offender, while others simply did not take it as seriously as drugs such as cocaine or methamphetamine. After all, often both parents would smoke marijuana during marriage and the party that decided to divorce first would stop and sometimes be able to catch their spouse with a dirty test. In other situations, maybe only one parent indulged, but the other parent did not think it was a “big deal” and did not believe it hindered their spouses to care for the children. Once the decision to divorce has been made, however, suddenly the drug is dangerous and the smoking parent becomes a risk.
Parents who indulged in the drug believe that with the news laws in place, they have a “free pass” to indulge at their whim. This simply is not true. The drug is illegal under federal law and most states simply do not know how they are going to handle the new laws. Predicting what may happen with marijuana laws and enforcement is both speculative and risky. As a practical matter, the change in laws will probably have no impact on custody litigation. Legal marijuana is not different from alcohol. Alcohol is legal, but if there is an addiction or its use hinders a parent’s ability to care for their child, it will influence a judge in custody litigation. So while there may be a relaxation toward the illegality of marijuana, as far a judge in custody litigation is concerned, the issues are the same.