Can Legally Using Marijuana Affect Child Custody?

A judge may order you to take a drug test, and if you don’t take a drug test, the judge may deem the results positive. If you’re drug-dependent and can be expected to harm yourself or others, there’s a rebuttable presumption that you should not have custody. If you have a medical marijuana card, a judge can’t restrict your custody or parenting time based on your marijuana use, unless your behavior creates an unreasonable danger to the child’s safety.

In 2018, medical marijuana became legal in Oklahoma. Since that time, anyone who has a medical card may legally use marijuana. If you have a medical card, and you are in a custody dispute, you may wonder: Could using medical marijuana affect custody of my child?

In this post, I’ll summarize the most relevant legal principles.

1.    Judges may order drug testing on parents in custody cases.

Oklahoma Statutes, title 43, Section 110.2 says,

“In any action in which the custody of or the visitation with a child is a relevant fact and at issue, the court may order the mother, the child or father to submit to blood, saliva, urine or any other test deemed necessary by the court in determining that the custody of or visitation with the child will be in the best interests of the child. If so ordered and any party or child refuses to submit to such tests, the court may enforce its order if the rights of others and the interests of justice so require unless such individual is found to have good cause for refusing to cooperate.”

Oklahoma Statutes, title 12, Section 3235 reads,

“when the physical, including the blood group, or mental condition of a party is in controversy in any proceeding in which the person relies upon that condition as an element of his claim or defense, an adverse party may take a physical or mental examination of the party.”

Thus, if you’re in a child custody case, the opposing lawyer or party may ask the judge to order you to take a drug test. Or, the judge may, on his own motion, order you to take a drug test. In many cases, I have asked a judge to order the opposing party to take a drug test, and the judge usually orders a drug test when I ask for it.

This law has not changed since medical marijuana became legal in Oklahoma. The legalization of marijuana did not prohibit judges from ordering parents to take drug tests in custody cases. The fact that marijuana is now legal is not really relevant to this law; a drug test may reveal if you’ve consumed drugs that are still illegal. Even when marijuana was illegal in Oklahoma, drug tests revealed the use of drugs that were legal.

2.    If a judge orders you to take a drug test, and you don’t take one, the judge may rule that the drug test is deemed positive.

In Matter of L.W.H., the trial judge ordered the mother to take numerous drug tests. Mother did not take the tests, and the judge ruled that because of Mother’s failure to take the test, the tests were deemed positive. The appeals court upheld the trial judge’s ruling.

In many of my court cases, a parent has failed or refused to take a drug test after the judge ordered him/her to take one, and the judge deemed the test results to be positive. Whenever a judge orders one of my clients to take a drug test, I always make sure my client takes one.

I find nothing in Oklahoma law that indicates that this law has changed since medical marijuana became legal. Even after the legalization of medical marijuana, I have still had cases where a judge ordered a parent to take a drug test, the parent refused, and the judge deemed the test results to be positive.

3.    If you’re alcohol- or drug-dependent, and you can be expected to hurt yourself or others, there’s a rebuttable presumption that you shouldn’t have custody of a child.

Oklahoma Statutes, Title 43, Section 112.2(B) reads,

“There shall be a rebuttable presumption that it is not in the best interests of the child to have custody or guardianship granted to a person who …

“is an alcohol-dependent person or a drug-dependent person as established by clear and convincing evidence and who can be expected in the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person as a result of such dependency.”

This law has also not changed since medical marijuana became legal in Oklahoma.

A further statute is even more restrictive. Title 43, Section 112.5 requires that a judge award custody to a parent, unless the parent is “affirmatively unfit.” This law then says:

“There shall be a rebuttable presumption that a parent is affirmatively unfit if the parent:

“… Is an alcohol-dependent person or a drug-dependent person as established by clear and convincing evidence and who can be expected in the near future to inflict or attempt to inflict serious bodily harm to himself or herself or another person as a result of such dependency”

Note these important words: “affirmatively unfit.” These words are there for a reason. In custody disputes between two parents, the court is to award custody that is “in the best interests of the child.” But, in a dispute between a parent and a non-parent, the court is to award custody to a parent unless the parent is “affirmatively unfit.” In other words, a parent may obtain custody simply by proving that having custody would be in the best interests of the child (regardless of whether the other parent is unfit.) But, a non-parent may obtain custody only by proving that a parent is “affirmatively unfit.” But, if you’re a parent, and you’re alcohol- or drug-dependent, and the judge can reasonably expect you to inflict harm on yourself or someone else, you can lose custody to a non-parent. This law has not changed since marijuana became legal in Oklahoma.

4.    If you have a medical card, a judge can’t deny you parenting time with a child unless your behavior creates an unreasonable danger to the child’s safety.

When Oklahoma passed a law legalizing medical marijuana in 2018, the law included this provision:

“No licensed medical marijuana patient may be denied custody of or visitation or parenting time with a minor child, and there is no presumption of neglect or child endangerment for conduct allowed under this law, unless the behavior of the person creates an unreasonable danger to the safety of the minor child.”

The text of this law is essentially the same as it was when it was enacted in 2018. You must note what the law actually says: A judge can’t deny you custody or parenting time, or presume child neglect or endangerment, “unless your behavior creates an unreasonable danger to the safety of the minor child.” That language is intentionally broad and subjective. It means whatever a judge wants it to mean. So, even if you’re a legal marijuana user, don’t assume that a judge will automatically tell you that you can use marijuana all you want to and keep custody of your child. In the past, I have seen judges tell parents that they may not smoke or drink alcohol in the presence of their children, or have any tobacco or alcohol products in the children’s presence. Smoking and drinking are legal, but this hasn’t stop judges from restricting parents from using it – or even from having cigarettes and alcohol – around children. While I’ve seen judges allow parents with medical cards to keep custody of their children, don’t assume that this law gives you carte blanche to do whatever you want with marijuana and still keep your children.

Also, note the following language: “No licensed medical marijuana patient may be denied custody of or visitation or parenting time with a minor child, and there is no presumption of neglect or child endangerment for conduct allowed under this law.” This law protects “licensed medical marijuana patients” for “conduct allowed under this law.” Thus, if you are using marijuana without a card (as many people do) or if you’re engaging in conduct that is not legal in Oklahoma, this law gives you no protection at all.

Do you have questions about medical marijuana and child custody? Contact the Persaud Law Office.

At the Persaud Law Office, we’ve handled many child custody cases, including cases where drug use was an issue. Perhaps you have a medical card, and you wonder if this will affect custody of your children. Or perhaps your child’s other parent is using drugs in a way that concerns you, and you wonder if there’s anything you can do about it. We’re here to help you. Contact us today.