Lose Custody for Smoking Weed

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Can I Lose Custody for Smoking Weed?

Are you concerned you might lose custody for smoking weed?  Are you going through a divorce, are a smoker of weed, and planning to enter child custody proceedings? If so, it’s important to engage a competent lawyer. 


But wait, isn’t weed legal in California? The short answer is YES! 


In 1996, California became the first state to establish a medical marijuana program. According to California law, residents can grow marijuana plants and possess the drug for personal use if they have a prescription from a licensed physician.

The passing of Proposition 64 (The Adult Use of Marijuana Act) in 2016 led to recreational marijuana being sold by 2018. 


However, when California voters decided to legalize the use of marijuana, both for medical and recreational use, it did not necessarily mean that marijuana consumers were completely in the clear of the restrictive effects of the taboo it carried.


Despite it being legal to possess and consume the plant in California and some other states that have approved it, the DEA tells us that the substance is still considered federally illegal under the Substance 1 category. This means, anything handled in a Federal Court, such as a child custody case, will be subject to upholding the Federal Law.

Though California and many other states consider it legal, the federal government classifies marijuana as a Schedule 1 drug, like heroin or LSD. This means that a dispensary or an individual may still get into legal trouble for growing, possessing, selling, or using medical marijuana in California.

Lose Custody For Smoking Weed Rolling A Joint

However, this is not all to say that if you are a weed consumer, you will be completely out of luck in a custody case. 

In The Best Interest of the Child

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The fact remains that medical marijuana is federally illegal, and therefore the subject of marijuana and child custody is a gray area. There is no black and white answer to whether, while you are going through a divorce and smoking weed at the same time, it will affect child custody determinations. 


The courts will decide on a case-by-case basis, according to what is in the best interests of the child. 


The courts look at factors such as:


  • Age of the child


  • Child’s health


  • Relationship between the parent and child


  • The ability of the parent to care for the child

  • History of domestic abuse


  • History of substance abuse


  • Child’s ties to home, community, and school


The most important factors when considering medical marijuana would be any history of substance abuse and the parent’s ability to care for the child and offer a safe, healthy environment. Judges will not bar the parent from custody or visitation. However, it is entirely up to the judge’s discretion.


The Federal Court will always fall in favor of trying to decide what is best for the child. The gold standard of child custody cases is - and remains - that what is in the best interests of the children should prevail. 


There is no easy deciding line, and for good reason: child custody determination is as complex as a child is unique. The Court must not only address prevailing and changing law as well as morals and norms of substance use, but also address all other factors affecting the best interest of children. 


Factors such as domestic violence, age, health, preference or comfort of the child, special needs, fitness of parents, habitability of residences, status quo, bonding, and attachment are all taken into account as well.


If it appears that marijuana use is more important or a higher priority to the parent than the child’s well-being, that parent can lose custody rights, including visitation and decision-making. Regardless of the state, courts will use some form of this standard when dealing with matters like child custody. 


One important thing to remember, as with anything new, is that it’s impossible to know for sure how judges and courts will treat it. So your custody orders may already include a rule for marijuana use. If they don’t, the bottom line is: does marijuana use affect your ability to parent your kids?


Exes Can Use Weed Usage as Leverage in Custody Cases

Child custody battles are rarely pleasant starting out but often become stressful and combative, with each side looking for any advantage. If you are a marijuana-using parent whose pot habit was barely tolerated by your non-smoking spouse during your marriage, it's quite likely that your habit will be revisited during your custody battle.


Since the point is to prove you’re the more capable parent, things often get downright nasty. Name-calling and attempts at character assassination are commonplace. If you use marijuana regularly, your ex may present that as an example of why you’re not a fit guardian.


If it gets that far, your ex may very well present the fact you use marijuana to paint you and your parenting ability in a negative light. Even if that’s not true, it’s something you may have to contend with. 

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So why give them that opportunity? This, again, is a slippery slope. When diving into a possibly heated battle over your little ones, prepare to be exposed. 


Protect yourself!  Remember, marijuana use may have zero impact on your ability to care for and protect your children, but it can still play a part in who gets custody. 


Whether or not there’s any truth to these claims, if you’re in a tense, hostile custody fight, the fact that you smoke weed may be used to defame your character.


It may well play a part, but it shouldn’t derail everything. Shouldn’t is the keyword. That doesn’t mean it won’t factor into your situation at all. You do, however, have steps you can take to protect yourself, your kids, and your custody case.


Don’t Let Marijuana Use Become a Real Issue in your Child Custody Case

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  • Don’t get high around your kids. If you know you need to look after them for the afternoon, stay sober while you do it.


  • Even if you’re only an occasional user, limit access to your stash.


  • Keep paraphernalia locked away, or at least out of the easy reach of any kids who may be around.


  • If you have any edibles in your possession, make sure they’re not someplace the youngsters will find them while looking for a tasty afternoon snack.


  • No one wants to experience the horrifying realization that the brownie your son or daughter just polished off isn’t of the kid-friendly variety.

Be aware of the ways marijuana impacts child custody. Don’t give the other side any additional tools to use against you. Leave the bong in storage if you think it may play a role, at least until you have an answer. If it helps you get custody of your kids, isn’t that worth the sacrifice? 


In short, if you know your ex or the courts could use your legal marijuana usage against you, and you know this is an aspect of your case that you can control, then DON’T USE IT! 


Don’t create an uphill battle for yourself. You have enough to worry about in divorce without smoking weed.


The more acrimonious the case, the dirtier the tactics can be to achieve the desired results. It's a wise decision to begin your detox well before filing your petition for divorce to avoid falling into this trap.


Are You A Marijuana User Facing A Custody Battle? Consider Legal Help Today!

There is no hard and fast rule for medical marijuana use and child custody determinations. Some judges take a very strict approach to the use of medical marijuana. A valid prescription may mean nothing if a judge is against the use of marijuana and/or believes it will affect childcare. 


If you’ve found yourself in a situation where your spouse is trying to leverage your marijuana consumption against you to obtain full child custody, Kimberly Surber, a Certified Divorce Financial Analyst®, can refer you to a professional attorney who can help you! 


Show the court that you are, in fact, capable of parenting your children and that having a consistent relationship with them is in their best interest. 


To discuss the financial issues of your case and circumstances in greater detail, call today to set up your initial free consultation at (907) 347-3860.

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This information is not intended to be a substitute for seeking legal advice from an attorney. For legal or tax advice please seek the services of a qualified attorney and/or qualified tax professional.

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