How Can Marijuana Use Affect Your Child Custody Case?


How Can Marijuana Use Affect Your Child Custody Case?

Marijuana use and child custody battles in New Jersey

There are different laws that affect marijuana use and child custody battles. There are laws that govern the legal use of marijuana and laws that govern how custody decisions are made in New Jersey. Generally, New Jersey now permits limited use of marijuana for medical purposes and for recreational use. Marijuana use that isn’t legal can result in serious criminal charges.

New Jersey marijuana use and child custody battles generally provide that custody decisions are based on the best interests of the child. Whether you can lose custody of your child for smoking weed depends on how your child’s physical and mental health is being affected. 

Is cannabis legal in New Jersey?

Some marijuana use is legal. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (known as the CREAMM Act) was signed into law on February 22, 2021, by Governor Phil Murphy. This law was passed after voters approved recreational marijuana use in November 2020. The law provides that when cannabis “is bought, sold, and used under certain conditions, it is treated as ‘regulated cannabis’ and fully legal in New Jersey.” New Jersey residents 21 and older may now possess up to one ounce of cannabis or its equivalencies. 

The New Jersey Compassionate Use Medical Marijuana Act (CUMMA), the state’s medical marijuana law, permits physicians to prescribe up to 3 ounces of marijuana for a 30-day period for patients who have a proper medical need.

According to the New Jersey Department of Law & Public Safety, “Marijuana and hashish are still defined as ‘controlled dangerous substances’ under N.J.S.A. 2C:35-2 but are largely decriminalized for non-distribution offenses.”

Can you lose your child for smoking weed?

Marijuana and child custody are considered together if one parent raises concerns about – whether another parent should have legal or physical custody of their child(ren) and whether the parenting plans should be adjusted or modified.

  • Illegal marijuana use in child custody battles will be a prime consideration by the family court judge because of the risk that a parent may be charged and convicted with a criminal offense. 
  • Legal marijuana use in child custody battles can also affect custody and visitation factors if the use affects any of the factors determining custody that family judges are authorized to consider. The factors include:
    • The interaction and relationship of the child with its parents and siblings.
    • The safety of the child and the safety of either parent from physical abuse by the other parent.
    • The needs of the child.
    • The stability of the home environment offered.
    • The quality and continuity of the child’s education.
    • The fitness of the parents.
    • Many other factors

Generally, family courts will consider such questions as:

  • How old is the child?
  • How often does the parent use drugs before child?
  • Is the parent discreet or does he/she use weed in front of the child?
  • Can the child access the weed?

A key factor will be whether the parent’s cannabis use is affecting the child’s development – education, social relationships, discipline, and other issues. Another cannabis and parenting issue is whether both parents use medical marijuana.

Marijuana and child custody cases – Is the marijuana use a sign of a deeper substance abuse problem?

Whether a parent has an addiction problem or a substance abuse problem is normally a critical factor. In marijuana and child custody cases, the family court will normally order that a parent undergo a formal drug evaluation if a parent raises concerns that the marijuana use is just the tip of the iceberg of a deeper drug problem.

Marijuana use and child custody battles that involve addiction seriously impact how well your ex can keep your child safe and provide appropriate supervision. Addiction impacts how well your ex can communicate and cooperate about parenting. It affects your child’s relationship with the parent. Addiction may also play into your child’s preference about custody if he or she is old enough to have one. An addict may not be able to meet your child’s needs or provide a stable home. 

At DeTorres & DeGeorge Family Law, our divorce lawyers understand all the factors that affect custody and visitation in New Jersey including how marijuana and child custody should be considered. Our lawyers understand both sides of  marijuana use and child custody battles. We understand that the state position that weed use is acceptable in some cases. We also understand that marijuana and child custody should be considered if a child’s health and safety are at risk. To discuss child custody and visitation rights, call us at 908-503-2925 or fill out our contact form to make an appointment. We have offices in Clinton and Florham Park.

Erin D. DeGeorge
Erin D. DeGeorge joined DeTorres & DeGeorge, LLC as partner to the firm in June of 2010. Prior to joining DeTorres & DeGeorge, Erin was associated with the national firm of Fox Rothschild LLP and Cutler, Simeone, Townsend, Tomaio & Newmark, LLC...
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