Recreational use of cannabis was illegal in the State of New Jersey until February 22, 2021 with the signing of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA), and other cannabis laws by Governor Phil Murphy. These bills legalized and regulated cannabis use and possession for adults 21 years and older. While NJCREAMMA provides employment protections for applicants and employees who use cannabis and imposes significant burdens on employer drug testing practices, there remains a question about how this legislation may impact child custody issues in New Jersey.

It is important to understand that legal or not, substance use or abuse – specifically around children – can absolutely impact a child’s well-being. NJ Family Courts determine a child’s well-being in child custody matters and matters involving parenting time by evaluating the “best interest” factors in N.J.S.A. § 9:2-4. The best interest factors are:

1. the parents’ ability to agree, communicate and cooperate in matters relating to the child;  
2. the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;  
3. the interaction and relationship of the child with its parents and siblings;  
4. the history of domestic violence, if any;  
5. the safety of the child and the safety of either parent from physical abuse by the other parent;  
6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;  
7. the needs of the child;  
8. the stability of the home environment offered;  
9. the quality and continuity of the child’s education;  
10. the fitness of the parents;  
11. the geographical proximity of the parents’ homes;  
12. the extent and quality of the time spent with the child prior to or subsequent to the separation;  
13. the parents’ employment responsibilities;  and
14. the age and number of the children.  

While not a “rule”, typically the Judge will want to know if a parent’s use of marijuana is adversely impacting the child. As a result, in the context of one parent’s use, or the other parent’s concern about use of controlled substances, some of the things the family court will likely consider include but are not limited to:

• Is the child awake or aware that marijuana is being used?
• Does the parent smoke weed in the child’s presence?
• Where is the pot kept in the house?
• How often does the parent smoke weed?
• How old is the child?
• Is the child susceptible to potentially taking the drug themselves purposefully or accidentally based on the parent’s use?
• Does the parent’s pot use affect the child and how? Such as, has the parent been unable to provide care, supervision or otherwise meet the child’s needs because of marijuana use?
• Has the child ever been injured in the parent’s presence due to the parent’s drug use?

If the information presented to the Judge raises concern that a parent’s use of marijuana is adversely impacting a child, the court has the authority and power to limit and possibly even revoke parenting time and/or custody rights. While legalization is new to our state, courts in NJ will likely look to other states for guidance on how to handle these matters. In states where marijuana is legal for recreational purposes, many family law courts have treated marijuana use the same as they do alcohol use, where they note that while legal for adults over 21, the parent must still use responsibly and in a way that does not put their child at risk.

However, it is important to understand that according to the custody statute, a parent “shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.” N.J.S.A. § 9:2-4. It is also important to understand that courts are unlikely to quickly limit, remove, or sever all child custody rights. As noted above, while it is possible that the court can revoke custody, they are much more likely to limit parenting time temporarily or possibly even order the parent to stop using marijuana or undergo a substance abuse treatment program. It often can include a combination of the above.

There is no one size fits all response to allegations of negative impact on the children based on a parent’s marijuana use. Courts will decide what actions, if any, to take on a case-by-case basis after an application of the facts as applied to the factors listed above and the amount and severity of the evidence.

If you have questions about custody or parenting time, the dedicated lawyers at Arndt & Sutak, LLC are available to help answer your questions. Contact us at (732) 867-8894.