Marijuana & Child Custody

By Sara Arnold a.k.a. Sahra Kant


Originally published in Mass Grass.

One of the most common types of cases heard in family court — and one of the most bitterly fought — is child custody. Spend a single day in one court room at any courthouse in Massachusetts or elsewhere in the country and you’ll hear a whole host of allegations made by parents or their legal representatives about each other. Often these accusations have to do with cannabis for medicinal or recreational use. This happens every day.

When one parent (or their attorney) brings up the other’s marijuana use, the individual judge assigned to their case has substantial discretion in how to respond. A judge can disregard it as a non-factor; some do. But cannabis use of any kind has resulted in forced cessation of medicine, random and regular drug testing, coerced drug rehabilitation programs, limited or discontinued visitation time for the non-custodial parent or only supervised visitation, the non-using parent granted sole custody, and reported to Child Protective Services (CPS) by family court. Even if a parent’s cannabis use never comes up in court, raising the topic in pre-hearing meetings between the parties’ lawyers can be a successful threat to push a parent’s capitulation on sole or shared custody, child support, true allegations of domestic violence, or other factors of these cases.

Those are the cases where both parents are battling over custody of their children. Sometimes there is only one parent, grandparents, or other family members who are fighting to be the custodial parent or guardian against the state, when the children are already languishing in foster care. Anyone seeking legal custody of a minor is assessed for suitability and appropriate environment by a team from CPS. If the social workers or their supervisors feel that there are issues which counter a child’s best interest, they can deny custody or require changes to be made prior to placement. These decisions can be appealed to family court.

Unfortunately, as you know from my previous columns, medicinal or recreational cannabis use is considered a huge problem by *both* CPS and in family court for biological parents. It also applies to guardians, foster parents, adoptive parents, and anyone seeking temporary or permanent custody of children. This is an issue in states with medical and / or decriminalization laws — such as Massachusetts, where Chapter 94C clearly states that possession up to an ounce of marijuana on one’s person, in one’s home or in the body cannot be penalized by any instrument of the Commonwealth, and gives the explicit example of that being applied to foster or adoptive parents. This even includes states where cannabis is now legal.

Billy Fisher is a father who recently moved from Idaho to Washington state with his girlfriend and her 10-year-old son to fight for custody of his baby daughter Lilly. He is a legal medical marijuana patient for medically-documented intractable back pain with bulging discs in his lower spine and hips from a fall several years ago. His girlfriend is Serra Frank, the founder of Moms for Marijuana International as well as co-founder of Compassionate Idaho, Idaho NORML & the Idaho HOPE Fest.

It’s understandable that Billy believed CPS and family court was there to help and protect his daughter. He knew his daughter was in an unsafe and instable environment and his first priority was Lilly’s safety. In desperation, he sought help from them in the form of an emergency removal of baby Lilly from her mother’s home. He thought his daughter would soon be home with her family. At the time of writing, Lilly has been in foster care just shy of four months.

Billy willingly agreed to and passed all CPS assessments. He agreed to accept services like counseling and classes, if he must do them to be able to be with his daughter. The only thing CPS and family court have a problem with is his medical marijuana use, about which he has been upfront and honest, in a state where it is legal and understood that use ? abuse. He’s been drug tested several time and CPS demanded that he submit to a 30-day inpatient substance abuse treatment program to be considered for custody of Lilly. In addition to the unacceptability of this requirement on a medical marijuana patient in a fully legalized state, it would cause the loss of his job, risk his family’s housing, and financial catastrophe for his and Serra’s family. Billy bravely said no.

The court in Spokane won’t allow use of any studies on cannabis because they are “hearsay”, even DEA Judge Francis Young’s 1988 ruling on lack of toxicity. Only expert testimony given specifically for this case will be accepted. Billy has also been told the judge will make him stop using his medicine regardless of being a patient with a Washington state medical marijuana card. But Washington’s medical marijuana statute, part RCW 69.51A.120 does cover this, and clearly states “parental rights and residential time [are] not be restricted.” Child Protective Services and family court do not seem to care about the law.

For most of his case, Billy had a state-assigned public defender who failed miserably to advocate for his client or even assist his client in navigating the complicated family court system. Due to his girlfriend’s activism, he has access to something most parents in his position do not — a cannabis community who helped him get a private, pro bono legal team and advisors. This is another strong step towards final success in the fight for Lilly. It’s a key difference between his case and the cases of so many others who don’t or can’t have any publicity.

There is a similar case in Maine of a grandmother who legally uses medicinal cannabis for her back pain. After her grandchildren were removed from the home of their mother, this grandmother fulfilled all of the mandatory foster care training and home visits asked of her by CPS. She provided reports from multiple doctors who said she was capable of taking care of the kids. She had and continues to have visits at her home with the kids every other weekend, but CPS won’t place the children in her custody because she uses medical marijuana. Grandma has no legal help in Maine (and no right to a public defender like in Washington state) to handle CPS bureaucracy and contest the denial of custody in family court. The children have been in state custody for almost a year, which means that a permanency hearing may soon occur to adopt out the children without the judge ever hearing about this devoted grandmother and her unyielding attempts at gaining custody of her grandchildren.

Right now there is a medical marijuana patient in Cambridge District Court fighting their former spouse for shared custody. They are being forced by the judge to provide drug tests, have their parenting time in a supervised visitation center instead of at home or being able to take their child anywhere of their choosing, and is barely allowed to see their child after having their amount of visitation time reduce due to testing positive for marijuana. There is another medical marijuana patient in the same court who has stopped using their medicine as recommended by their doctor to be on equal footing in their custody battle, and who now also has to fight against the returning symptoms of their conditions.

Child custody injustice over cannabis use happens every single day. It has happened to people you know. It could happen to you. Marijuana reform must include family court, including guaranteeing legal protections by enforcing those that we have already won as well as future successes.

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