Medicinal Marijuana and Custody


Medicinal Marijuana and Custody

In April of 2016, Pennsylvania became the latest state to enact legislation allowing physicians to prescribe medicinal marijuana to patients suffering from a list of qualifying conditions.  Two years later, Pennsylvania dispensaries opened their doors.  While many localities have eased restrictions when it comes to MJ, “recreational” use remains prohibited under state (and federal) law.  Provided however that they are under the guidance of a prescribing physician, PA residents have the green light to purchase and consume cannabis.

In the years since, a question has emerged in Pennsylvania Family Courts: Should the use of prescribed marijuana impact the rights of a parent involved in a custody dispute?  The answer, as is often the case in law, is that “it depends.”

In determining Custody, Pennsylvania Courts utilize a list of sixteen statutory factors, as well as “any other relevant information,” that generally go towards the best interests of a minor child or children.  These factors include proximity of parties’ residences, efforts to promote or prevent a relationship between the child and the other parent, the need for stability and continuity, and, among others, drug or alcohol abuse.

Historically, marijuana use has fallen squarely within the scope of that last factor.  Since medicinal marijuana has become available however, PA courts are hesitant to prejudice a parent for treating with a prescribed medicine.  Still, prescribed or not, marijuana is an intoxicant that impairs a parent’s cognitive and motor functioning.  The burgeoning challenge for PA Family Courts then is protecting a person’s right to treat with legally prescribed medicine while ensuring the health, safety, and overall best interest of children in that parent’s care.

The line is not as hazy, however, as it may sound.  Hair follicle drug screens, a tool often used by the Courts, will show the exact levels of THC found in a sample.  From there, a qualified expert can ascertain the extent and regularity to which a patient is using cannabis.  To put it bluntly, a hair follicle test will be able to show whether a parent is “high all the time” in the words of 50 Cent, or, using within what is considered “prescribed therapeutic limits.”  Where a patient’s levels are above that threshold, courts may impose restrictions, potentially including less custodial time, in the interest of ensuring the child’s safety.

If you have questions about protecting your interests and the safety of your children, reach out to one of our attorneys today at (610) 892 3877.


About the author

About Christopher Casserly

Chris joined the firm in 2013 after graduating from Villanova University School of Law. While at Villanova Chris focused on Family Law and Alternative Dispute Resolution. In addition, he participated in the Villanova Law Civil Justice Clinic where he advocated for indigent clients facing custody issues. Prior to attending law school, Chris received his B.A. from Providence College where he studied English and French. Chris is a Supervising Attorney and Team Leader at LaMonaca Law. Chris was named a “Top Lawyer” in Family Law by Main Line Today in 2015 and 2017, as well as a Best Lawyer in the area of Adoption in the Delaware County Daily Times. He is a member of the American Bar Association Family Law Section, the Pennsylvania Bar Association, and the Delaware County Bar Association, where he serves as chair of the Family Law Section’s Custody Committee. When he’s not advocating for his clients, Chris enjoys cooking, all things Seinfeld-related, and being at the shore with his family and their dog, Molly.