Marijuana Legalization No Help In Child Custody Cases

There’s an exception to the new rule of legal marijuana for adults over 21 in California—or, rather, a potential penalty for any cannabis user who has a child.

Marijuana use can still cost you your kids—and legalization is no help.

The Orange County Register brings us the story of a new father who, upon meeting his child for the first time—a total surprise, popped by a phone call from a dating partner he’d last seen, oh, about nine months ago—was then informed he’d have to pee in a cup in order to take custody. 

Since the child’s mother was not able to take him home and had no legal relationship to the father, 31-year-old Nathaniel Rudd, Rudd had to petition a court to win custody. 

As he explained to a social worker, he used medical marijuana to recover from pain stemming from a truck accident. Results from a drug test came back “inconclusive”—but that was enough. 

As the newspaper reported, Rudd lost custody of the child in September 2015, on the basis that marijuana use made him “cognitively unable” to be a father.

That was before California voters approved Prop. 64 in a landslide.

Prop. 64 helps state prison and county jail inmates in trouble for cannabis, helps people on probation and lets ex-offenders erase a felony from decades ago. But what it doesn’t do is curb family court’s power to remove a child from a parent for drug use, even if the drug is marijuana.

Supporters thought that wouldn’t be the case. As the Cannifornian points out, Prop. 64 explicitly states that a court cannot “rescind or restrict parental custodial rights” just because the parent has a medical marijuana recommendation.

But state officials insist that’s not a change at all. Courts can still revoke custody if they determine there’s a “threat or evidence of harm” connected to cannabis—and it appears the threshold to determine a weed-based threat is low.

Lawyers contacted by the newspaper say that cases like Rudd’s, where he was denied custody of his son solely for being a marijuana user, “aren’t rare.” One famous case in 2011 began after social services received an anonymous phone call about a Southern California man known to the courts only as “Paul M.” 

Paul M. used medical marijuana with a doctor’s recommendation for arthritis, kept his stash locked away in a box and had child-care help whenever he was medicating. That didn’t satisfy the social workers called to his home, who after discovering the (admitted) cannabis use, imposed a regimen of drug testing, drug treatment and parenting classes. 

After a legal challenge, an appeals court eventually found in Paul’s favor and undid the restriction, but the episode is telling.

In situations like this, individual social workers and family law judges wield an enormous amount of power. If one or the other “treats marijuana more like heroin,” as the newspaper puts it, a pot-smoking parent is out of luck.

The trick, experts said, is figuring out how the particular court views cannabis. If the court is in a cannabis-friendly jurisdiction, a toking parent may be in the clear. He or she also may not. It all depends on the courtroom.

In theory, any kind of intoxication is grounds for removal of a child from his or her parents—including alcohol. But the double standard is obvious. Does anyone lose custody of a child for a glass of wine? That would be unheard of, but it’s a real risk with the cannabis equivalent.

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