Arndt, Sutak & Miceli, LLC

The Pot thickens: How medical marijuana impacts child custody and parenting time

A recent decision from the NJ Court of Appeals has determined that an employer can be responsible for reimbursing employees for their medical marijuana usage prescribed for chronic pain from a work-related accident. This was a case of first impression which means that this is the first time this issue has appeared before the Appeals Court. They determined that the employee had demonstrated that because of the severity and chronic nature of his pain, for which no other alternative treatment provided relief, his marijuana usage was reasonable and necessary and should be a covered medical expense under Worker’s Compensation.

Does this case mean that a parent is free to smoke pot without it affecting their divorce or custody? Probably not yet…..but maybe one day soon.

As many of you likely know, marijuana legislation and changing landscape of how the United States handles marijuana use is vastly changing on what seems like a daily basis. At least once a week we hear complaints from clients that the other parent abuses marijuana and should not have parenting time or conversely that they are being denied parenting time due to either actual or suspected marijuana usage.  

As of the date of the writing of this article, New Jersey’s marijuana laws still dictate mandatory minimum penalties for non-medical possession and/or sale under 24:21-1, et seq. and 2C:35-2, et seq. For possession the offenses in New Jersey can stem from a disorderly persons offense for under 50 grams suggesting up to 6 months in jail and $1,000 fines, 100 hours of community service (additional penalties if in a school zone) to a felony for over 50g suggesting up to 18 months in jail and a $25,000 fine. 

*(Please note that state laws are constantly changing. This paragraph is not intended and nor should it be construed as legal advice.)

However, in 2010, New Jersey became the 19th state to allow its residents to smoke marijuana for medicinal purposes under the controversial New Jersey Compassionate Use Medical Marijuana Act (N.J.S.A. 24:61-1). Interestingly, at that time, New Jersey was only the second state (Arizona was first) to permit doctors to actually prescribe marijuana.

While the Act is controversial for numerous reasons, the one that is weighs on the New Jersey Family Courts is its impact on custody battles. Specifically, the Courts must reconcile whether a parent should be granted child custody in a divorce proceeding or custody battle if he or she smokes medicinal marijuana.

New Jersey courts consider numerous factors when determining child custody pursuant to N.J.S.A. 9:2-4(c).  The factor that is most relevant to this evaluation is “the fitness of the parents.” The NJ custody statute provides that “a parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.”

That sounds wonderful…but how exactly does the Court define “fit” or “unfit.” 

In 1981, the New Jersey Supreme Court evaluated the term “fit” and set a standard for future courts to follow. In the case of Beck v. Beck, 86 N.J. 480 (1981), both parents sought joint custody of their children. The Court’s primary issue was to determine whether both parents were “fit” parents to care jointly for their children. The Court states that in order to be “fit,” the parents at the very minimum had to be “physically and psychologically capable of fulfilling the role of the parent.” Id. at 498. The Court granted joint custody as it found that both parents satisfied their definition of “fit.”

I have noticed a recent trend for many of the “common sense” judges to ask questions related to the manner in which the person stores the marijuana (just like any other medication) and when/where they use the marijuana. If a parent is irresponsible with their marijuana around the minor children, this would likely be a negative inference as far as the ultimate custody decision.

In my experience, Courts seemingly have been applying the “fitness” standard to ask whether smoking marijuana for medicinal purposes will affect a parent’s fitness to care for his or her child. For example, “is the parent’s illness that requires medicinal marijuana so severe that the parent is not fit to obtain custody over the children?” While this is a thought-provoking question, the issue of whether or not the parent is still “fit” to care for the minor child while under the influence of marijuana will be determined on a case by case basis.
As such, if you or your children’s other parent use medical marijuana and are concerned about the impact on your divorce or custody case, please contact us now to best prepare for tackling these very fact specific issues.

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