A legal note from Marshal Willick about the impact of approval of “Question 2 – Initiative to Regulate and Tax Marijuana” on child custody matters in Nevada.

In 2001, Nevada voters approved the “Nevada Medical Marijuana Act.” In 2017, possession of less than 1 ounce of marijuana flowers and one-eighth an ounce of concentrated THC was de-criminalized, with sale to be phased in over a period of years.

Recreational marijuana presents challenges for family court. On the one hand, recreational marijuana use will be legal. On the other hand – like alcohol or multiple other substances – if used or abused during custodial time, the effects of marijuana could place children at risk.

I. NEVADA FAMILY COURT BACKGROUND

At best, the history of the intersection of drug use and family court has been both “personal” and mixed. Judicial reactions to evidence of a parent smoking marijuana over the past 20 years has been as varied as “no big deal” to the posting of signs in the courtroom demanding that parents choose between drugs and their children in an either/or selection and near-automatic loss of custody to the using parent.

At least one current family court judge appears to have a zero tolerance approach to a parent using marijuana, even when it has been prescribed under the existing medical marijuana statutes. Given that some “prescribing physicians” market themselves as “Dr. Reefer” and “Dr. Green Relief,” some level of judicial skepticism can be seen as understandable, but the point here is the utter lack of uniformity in current family court treatment of issues relating to marijuana – and therefore predictability to potential litigants.

If anything could be labeled a “prevailing approach” in family court of a parent using medical marijuana, it would be “caution and scrutiny.”

II. THE QUESTION OF “USE” VERSUS “ABUSE”; DUE PROCESS, TECHNOLOGY, AND IMPACT ON CHILDREN

A major concern in the legalization of recreational marijuana is how to determine when someone goes beyond enjoying a legal activity to the point that “abuse” occurs. There are two questions as to marijuana use in a family law context – impairment of the parent and direct effect on the child.

First, as to parental impairment, the concern is much the same as with alcohol. Where no prima facie case of abuse, neglect, or similar problems have been shown, family court judges largely ignore whether a parent has a glass of wine or whisky during that parent’s custodial time or otherwise, as they should.

If a case has been made out of impairment affecting parenting of a child, a family court judge will generally order that a suspected alcohol-abusing parent is not to consume any alcohol during custodial time. Such orders may be monitored through various technological means, such as the Options Patch Program, or Sober Link or Smart Start (automobile detector/interface systems).

It is relatively easy for the court to monitor alleged alcohol abuse and use during custodial time, to try to balance an individual’s rights to behave as desired with the court’s legitimate goal in protecting the health and safety of minor children involved in custodial disputes. The existing technology is considered sufficiently sophisticated to allow a court to order a breathalyzer test at custodial exchanges and periodically throughout custodial time using a portable device. If the alleged abuser registers a positive test, the court may intervene and even suspend custody within days, if not hours, of the violation.

The primary technological problem with monitoring marijuana impairment is that the psychoactive ingredient in marijuana, THC, stays in the body long after the inebriating effects have gone away. A parent ingesting marijuana 5 days before exercising custodial time is still likely to test positive for THC.

Current tests for marijuana impairment are primitive. In recent years, home urine tests have been released on the market. However, these only test for THC in the system and cannot be relied upon to determine impairment at any given moment.

The Nevada authorities are under fire for using drug detection tests at roadside stops that are considered “grossly unreliable.” The Colorado State Highway Patrol currently uses a marijuana DUI device, as part of a 3 year pilot program, which tests saliva for narcotics and produces a report within 5 minutes. There is no word on if or when these devices will be available to the public, or if they would be sufficiently “valid” to be useful if they were available.

A blood test for marijuana impairment – besides requiring trained medical staff to draw blood and run the tests – would not produce an instant report while a parent has custody of a child.

By the time the test results could be delivered and evaluated, the children might be in and out of that parent’s custody multiple times. Then the court would have to hold proceedings, take evidence, and make findings that the parent with a positive marijuana test result was impaired while caring for the children – likely requiring expert testimony at a cost out of reach for many or most litigants.

Along the same lines is the matter of THC-laced edibles; as with a quart bottle of Wild Turkey, the general and obvious direction is to “keep it away from the kids.”

The second question of potential harm to a child from marijuana use by a parent is the potential direct effect by exposure to second hand smoke. This is a bit different than the alcohol analysis, since no matter how drunk a parent might get, the child is not typically directly affected by the parent’s consumption of the substance.

Current research is uncertain. While certain advocates continue to maintain there are “no harmful effects” from exposure to marijuana smoke, some social science research persistently shows evidence of at least a correlative (but not necessarily causal) relationship between significant marijuana use and cognitive declines and decreased school and test performance.

In the current state of research, a family court judge might well be concerned not so much with temporal concerns (parental use of marijuana during custodial time) as with proximity (use of marijuana where the child could be directly exposed to second hand smoke).

It is possible that the other parent could make out a case for custodial modification by testing the child directly – if a child shows measurable THC, then it would be reasonable to conclude that the child was being exposed to marijuana smoke by someone. The current at-home tests are apparently adequate for this purpose. In the absence of any known standard for how much of such exposure is demonstrably safe, it would not be too much of a stretch for that parent to demand that the child should be THC-free.

It is obviously inappropriate for a family court judge to issue orders regarding child custody that have nothing to do with parental fitness or direct harm to the child during that person’s parenting time; any such order would smack of being “arbitrary and capricious” – based more on personal sentiment or opinion as to lifestyle and morality than any valid legal rationale. (For a related analysis, see Legal Note Vol. 22 — Parental Sexual Conduct, posted at https://www.willicklawgroup.com/vol-22-parental-sexual-conduct/.)

But a court might be rightly concerned with either allegations of neglect or abuse by reason of parental impairment, or of direct harm to the child by way of exposure. If the other parent could make out a prima facie case of either of those two possibilities, a traditional “best interest” custodial review would be warranted.

III. HOW OTHER STATES RECONCILE LEGAL MARIJUANA USE AND CUSTODY

In States where marijuana is legal, whether for medical use or recreationally, that legal status does not act as a total defense against a child custody modification. The older the case, the more skeptical the courts tend to appear.

In 2008, the Washington Court of Appeals framed the holding in In re Marriage of Wieldraayer, No. 59429-0-I, 2008 Wash. App. LEXIS 2916, (Ct. App. Dec. 22, 2008) as a double negative: the mere entitlement to use medical marijuana “does not mean that such use is not detrimental to [minor children].” The court called into question the intent behind the parent’s use of medical marijuana as he had previously used marijuana for its “intoxicating effects” prior to obtaining the prescription.

The Court of Appeal of California held in In re Alexis E., 171 Cal. App. 4th 438, 451, Cal. Rptr. 3d 44, 54 (2009) that it had “no quarrel with Father’s assertion that his use of medical marijuana, without more, cannot support a jurisdiction finding that such use brings the minor within the jurisdiction of the dependency court.” In other words, the trial court was not permitted to restrict custody or visitation on the basis that a parent was simply using medical marijuana, absent further findings that the use harmed or endangered the child.

However, the appellate court affirmed the lower court’s finding that it had jurisdiction because the father was a habitual marijuana smoker prior to obtaining the prescription for marijuana, and the case evidence indicated that the father used marijuana in the home with the children present. So a dependency inquiry into harm or danger was proper.

In Colorado, the controlling statutes require a “finding of endangerment to the child’s physical health” to restrict parenting time, and the Court of Appeals of Colorado held in 2010 that mere usage of medical marijuana by a parent does not rise to the level of endangerment of the child. In Re Marriage of Parr, 240 P.3d 509 (Colo. Ct. App. 2010).

An unpublished decision by the Court of Appeals of Arizona, Gerald M. v. Dep’t of Child Safety, No. 2 CA-JV 2015-0130, 2016 Ariz. App. Unpub. LEXIS 552, at *21 (Ct. App. May 4, 2016), set the threshold for Court intervention as a finding that a parent using medical marijuana is unable to “discharge his parental responsibilities.” Absent this finding, “the court [is] not entitled to draw conclusions about his level of use or any associated impairment.”

In other words, the general trajectory of case law appears to be an increasing acceptance of marijuana use by parents – like alcohol use – with the question evolving from the fact of the parent’s use to an examination of the impact on the child, if any, either directly (i.e., the second-hand smoke issue) or indirectly (i.e., impairment of the using parent’s ability to properly parent the child).

IV. CONCLUSION

Legalized marijuana is a reality, and it would be a mistake for the judiciary to pretend otherwise. An insistence on treating any marijuana use by a parent, by itself, as disqualifying a parent from primary or joint custody would appear to run afoul not just of our child custody statutes and case law, but perhaps of equal protection and due process guarantees as well.

If Nevada is to be part of the judicial consensus on this issue, our family courts should rule that the mere use of marijuana by a parent is not enough to restrict custodial time. Rather, the courts should base their rulings on a “marijuana plus” analysis.

The question is whether a prima facie case exists of either direct or indirect harm to a child based on a parent’s marijuana use – not “moral” harm, but actual physical harm or risk of abuse or neglect. If so, the normal evidentiary standards and burdens apply, and the matter can reach a conclusion based on a legitimate best interest analysis. If not, judicial “disapproval” has no legitimate place in the analysis.

V. QUOTES OF THE ISSUE

“I tried marijuana once. I did not inhale.”
– William J. Clinton

“I don’t do drugs though, just weed.”
– Thurgood Jenkins, Half-Baked

“[Marijuana is] the real Public Enemy #1 . . . turning all the children into hooligans and whores.”
– Alan Cumming’s Reefer Madness

“I was gonna pay my child support but then I got high.”
– Afroman

“Dave’s not here.”
– Cheech & Chong

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