Child Custody When a Parent Uses Cannabis

In mid-2023, Maryland passed legislation permitting adults 21 and older to lawfully possess up to 1.5 ounces of marijuana and grow up to two plants for personal use. As with most cannabis reform, simply legalizing the drug has raised questions about how marijuana use should impact other areas of law. For child custody cases, Maryland has decided that marijuana use should not be the deciding factor in whether a parent can retain child custody.  

Maryland passed a law that barred child protective services from separating families solely because a parent used cannabis. The law states that child neglect “does not include the use of cannabis by any parent or individual who has permanent or temporary care or custody or responsibility for supervision of the child.” However, marijuana use may still be a factor in child custody cases if “the child’s health or welfare is harmed or place at substantial risk of harm” or “the child has suffered mental injury or been placed at substantial risk of mental injury” as a result of parental marijuana use. 

California passed a similar statute that requires parental marijuana use be treated the same as alcohol use.  

Child Custody Factors  

Family law courts are to make child custody decisions based on the child’s best interest. As such, all decisions regarding child custody will be made according to the child’s best interest standard. This means that child custody will be determined based on what is best for the child, rather than what the parents want.  

Factors for determining child custody include, but are not limited to:  

• Each parent’s relationship with the child; 
• Each parent’s history of interactions with the child; 
• Whether or not the child has any siblings or other family members living with only one parent; 

• The child’s primary caregiver; 
• The mental and physical health of each parent and child; 
• Each parent’s financial state; 
• Each parent’s residence; 
• Whether the child has any special needs, such as health, mental, or medical needs; 

• The child’s wishes, if the child is old enough and capable of stating a preference. 

A court will typically accept an agreed child custody plan as long as it is in the child’s best interests. If parents can agree to a child custody arrangement, it will typically save them money in legal fees and be less stressful overall for both parties. 

Is Parental Marijuana Use in a Child’s Best Interests?

Historically, marijuana has a stigma as criminals or social deviants. Among younger generations though, marijuana is not the social pariah that baby boomers made it, and even has medical use. Of course, children should not consume cannabis themselves or be exposed to second-hand smoking. However, this risk is present for tobacco and alcohol users as well, and no believes that child custody should be removed simply because their parent lights a cigarette or drinks a can of beer.   

It is possible that an older judge could determine that a child is at substantial risk solely due to marijuana use, thereby circumventing the spirit of the law. However, a judge must still place their rationale on the record, and any abuse of discretion can be appealed to a court of review. Even if the written statute is somewhat vague, it is still momentous for a state legislature to make their intent clear that marijuana use is not a sole net negative in parenting.   

Do I Need an Attorney for My Child Custody Case?

If you are dealing with a current child custody case or are looking to file one, it is important to contact a skilled child custody attorney in your area to determine the next steps in the process. An attorney can represent you in court and suggest different options that would best benefit the child.