Medical Marijuana and Custody Orders

California is a bit unique when it comes to the issue of Marijuana.  Under Federal law, possession of Marijuana for any purpose (absent a license to create clothing using hemp) is illegal.  In California, however, possession of Marijuana for medicinal purposes (dispensing and use) are permitted due to the passage of Proposition 215.  As a result, we have competing laws at the Federal and State level.  The question of "is it legal" truly depends upon who you are talking to in law enforcement.

When the issue turns to custody and visitation, the courts generally are harsh on drug users and limit or prevent visitation between a using parent and their child.  However, because medical Marijuana is legal (at least from a California perspective), applying the same standard to parents as other clearly illegal drugs would likely be a violation of the parent's rights. 

The result has been that courts, at least in Ventura County, have chosen to ignore the issue of medical Marijuana usage unless it impacts that parent's ability to care for the child during their custodial time.  While the mediators (and thus the Judges) may be willing to put language into custody and visitation orders that state that the parent cannot use or be under the influence of any illegal controlled substance or alcohol 24 hours prior to or at any time during their custodial time, they have so far appeared unwilling to create any language regarding the use of medical Marijuana.

If you are the using parent, despite the law, it would be advisable to consider whether your use impairs your ability to care for the child during your custodial times and, if so, abstain from using during that time (perhaps even volunteer to do so if you can).  If you are the other parent and are concerned about use during custodial time, you should be armed with specific facts as to how the apparently legal usage of medicinal Marijuana impacts the other parent's ability to care for the child during that parent's custodial time. 

Until such time as the US Supreme Court resolves the apparent Federal and State conflict as to laws, family law courts will likely continue to step lightly around the issue of medical Marijuana, even in custody and visitation cases.