November 8th, 2016 was a historic day for marijuana policy reform, with eight states passing ballot measures either legalizing adult use of marijuana or establishing medical marijuana programs. The passage of Massachusetts’ Question 4 was also a landmark victory for parents adversely affected by marijuana prohibition, as the ballot initiative included parent-protective provisions.
Today, the Regulation and Taxation of Marijuana Act goes into effect and Massachusetts parents will be better protected from unnecessary CPS intervention. While Massachusetts is not the first state to have provisions to protect parents, it is the first to have strong enough language to help ensure that parents cannot lose their custody, visitation, or parental rights based solely on their cannabis use. Question 4 included the strongest parent-protective provisions of any marijuana law that has ever passed in a US state.
Despite the fact that more than half of the country has repealed some form of marijuana prohibition, families are still left behind without policies in place to protect parents from facing Child Protective Services (CPS) actions for their cannabis use. In states where marijuana is legal for medical and/or adult recreational use, parents are still having their custody challenged, or even their parental rights completely terminated, based on their use of an otherwise legal substance. Parents have even been accused of child abuse or neglect for state-legal marijuana use alone. If normal and responsible use of alcohol or legally prescribed medication do not affect an individual’s ability to be a parent and do not warrant CPS intervention, then normal and responsible use of medical or recreational cannabis should also not warrant CPS intervention. Parent-protective provisions must be included in marijuana legalization initiatives to make sure that parents who use cannabis can retain their rights. Question 4 is precedent-setting for all future medical marijuana and adult recreational use legislation and ballot initiatives.
The provision included in Massachusetts’ Regulation and Taxation of Marijuana Act uses language from Family Law & Cannabis Alliance’s model parent-protective language. FLCA founder Sara Arnold and FLCA Board of Directors member Shaleen Title worked on getting this parent-protective provision in the ballot initiative by advocating for its inclusion and editing it to satisfy the bill’s drafters. FLCA’s model language was carefully crafted to ensure full protection from CPS investigations, assessments and proceedings as well as custodial matters between parents in family court. The language in the Regulation and Taxation of Marijuana Act does not ensure such full coverage but prevents CPS from using cannabis as a determining factor in custodial and termination of rights cases and other proceedings.
California’s Proposition 64 also included some parent-protective language that was based on FLCA’s model language. However, Proposition 64 will be very limited in protecting parents as the parent-protective provision is restricted to medical patients and allows state-legal cannabis use to be a determining factor in child custody.
It is still too early to tell how the new laws will play out in family court and how CPS will respond, as they are likely to fight back while the law’s regulations are being written and for some time to come after. However, Family Law & Cannabis Alliance is ready to put pressure on those writing the regulations to fully implement the parent-protective provision and assist with ensuring the laws are followed by the Massachusetts and California state governments.