Medical Marijuana and Parenting Time
Over the 15-years since the medical marijuana act was passed, courts in Michigan have weighed in on marijuana's intersection with parenting and custody in our county family courts. Like alcohol, family court judges are frequently asked to regulate parenting when a custodial parent uses marijuana around the children.
A theme has developed within the published Michigan Court of Appeals decisions: so long as a parent’s marijuana use does not affect the parenting of minor children, parenting time cannot be conditioned upon abstinence from properly certified medical marijuana.
In re Ott is a recently published decision of the MCOA where the family court judge conditioned Mother’s parenting time in a child protective proceeding on her submitting evidence of marijuana abstinence for three consecutive marijuana drug screens. Mother had a long track record of homelessness, drug abuse, missed parenting sessions, and missed drug screens; she had extensive mental health issues.
The family judge’s zero tolerance condition was reversed by the MCOA holding that the medical marijuana act itself:
Provides that a person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.
An automatic suspension of parenting time for a positive drug screen for THC absent any examination of and determination under these statutory provisions is invalid. Respondent [Mother’s] use of marijuana did not justify the denial of her parenting time with LO unless the court determined that as a result of her marijuana use, parenting time, even if supervised, may have been harmful to LO’s life, physical health, or mental well-being.
In so holding, the MCOA expressly found that the medical marijuana act applied to family court and custody matters. Because the case is published, it now binds the lower family courts on the issue. Here is a link to the MCOA opinion.
Our law firm has observed this dynamic before. Despite a particular parents’ past sins, so long as that parent’s conduct remains within acceptable boundaries of child safety, then that parent’s contact with their children cannot be conditioned on a negative marijuana drug screen.
On the other hand, we have also experienced cases where a parent hides drug-seeking risky behavior behind either a medication prescription or a medical marijuana certification. In such cases, the other parent must be able to detail the misconduct with admissible evidence.
If you or a family member are having issues with a co-parent or the court over legal marijuana use, contact our law firm to schedule a free consultation.
For some historic perspective, here is a post from one of our law firm's blogs from over ten years ago on the inevitable intersection between medical marijuana and child custody and parenting time.