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.