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How Do the Courts Today Look at Marijuana Usage?

According to WebMD, medical marijuana is legal in 33 states, including New Mexico, and recreational marijuana is legal in 11 states, not including New Mexico. How do today’s courts look at marijuana usage? If a parent tests positive for THC, will they lose custody? Below, we answer these questions and more about marijuana use in Albuquerque and all of New Mexico.

Marijuana Usage Is an Evolving Issue in Court

From my experience in the family court arena, the issue of marijuana usage is still evolving. The courts treat marijuana usage differently than other illegal drugs or prescription painkillers, but I would not say marijuana usage is treated the same as daily alcohol usage either, which is broadly ignored (not to be confused with alcohol abuse, which will affect custody).

Marijuana is treated slightly differently under these three scenarios:

  1. in an initial custody case;
  2. when custody has already been decided and the court is considering a change in custody; and
  3. how the New Mexico Children, Youth and Families Department (CYFD) looks at marijuana usage.

Rarely do I see a parent lose custody over marijuana usage. If both parents were initially awarded custody, the standard for changing custody is a material and substantial change of circumstances. If one party was using marijuana during the marriage, then why would it suddenly be an issue after the marriage? A court will be unlikely to determine that the use itself is insufficient grounds for a change in custody.

The standard I hear more and more often is whether the marijuana usage is affecting parenting of the child. Is the child arriving at school on time, or is the child well-behaved, well-fed and appropriately dressed? Has the child been injured in an incident where the using parent has not been properly watching the child? These are all evidence of proper or improper parenting and, if these needs are not being met, it may be that marijuana usage is affecting parenting. At least the non-using parent will argue that marijuana is affecting the parenting and, without evidence to the contrary, the court may accept this argument.

If there are no claims of negligent parenting and the only evidence to support a change in custody is the positive drug test, then, typically, I see judges turn a fairly blind eye to marijuana usage. However, results can be different depending on whether the person has a medical marijuana card. I still see some cases where less visitation is awarded to the using party when marijuana is being used without a medical marijuana card. I would not expect to see this in states where recreational usage is legal.

While a parent may not lose custody over marijuana usage, in a case with two able parents, I still see the non-using parent getting primary custody or at least the majority of the parenting time. However, I am not sure if this is due to continued biases over marijuana usage or if other issues are involved that affect parenting. Marijuana is now being prescribed to manage stress, PTSD, anxiety, pain and a host of other issues. I am honestly not sure whether marijuana usage per se affects the parent’s ability to parent the child or whether the other issues (such as depression, pain management, PTSD, etc.) are affecting parenting.

Because there are still some biases against marijuana usage, I do advise my parents to stop usage if that parent is in the midst of a custody battle and trying to obtain primary custody.

CYFD treats marijuana usage differently than family court in custody cases because both CYFD’s objectives and standards are different. CYFD is looking for evidence of abuse or neglect. Without abuse or neglect, CYFD has no jurisdiction over the child. Therefore, CYFD is less concerned over the medical marijuana card, or lack thereof, and only concerned over whether the child was abused or neglected while in the using parent’s custody. If the child was not, CYFD will take no action. However, CYFD is not looking at a case between two able parents. As such, in order to take custody, it must prove with clear and convincing evidence that the child is being abused; and, from my experience, marijuana usage does not reach that standard of proof.

However, family court is looking at the better of two parents when awarding custody to one parent over the other; this is where daily, or hourly marijuana usage may come into play. I believe the standards are becoming more relaxed and marijuana is much more accepted than it used to be, but I would be wary of testing positive when the other parent is trying to obtain primary custody. In such cases where daily marijuana is necessary for anxiety or pain management, I might try to reach an agreement outside court for generous timesharing.

For professional help with your custody case, contact Cortez & Hoskovec, LLC online or by phone: (505) 544-5126.