“But It’s Legal in Michigan, So It Can’t Be Used Against Me…Right?” – Marijuana Use in Custody and Parenting Time Matters

In case you live under a rock, marijuana is legal in Michigan for both medicinal and recreational use. However, a stigma remains around marijuana use and the user that continues to evolve. The long-existing public perception of the squinting stoner on the couch devouring a bag of chips remains a problematic stereotype to overcome, especially because Federal law still classifies marijuana as a Schedule 1 drug. The claim “but it is legal in Michigan, so it is fine” or “I have a medical marijuana card, so it is fine” is now made frequently in divorce and custody cases, as well as “my ex smokes weed and it is not good for the kids. I want a modification to custody and/or parenting time.” Which presents the question, “if an individual is in full compliance with state laws and regulations, when does that party’s marijuana usage impact custody and parenting time?”

Ultimately, marijuana use in any form (smoking, vaping/dabbing, edibles, tinctures, powders, topicals, pills, etc.), either medicinal or recreational, may have little to no impact on a parent’s ability to care for their child(ren), but it still may directly impact parenting time and custody. If you are in a contentious custody battle and use marijuana in any form, it can and likely will be used against you by the other parent, even if you are indisputably in compliance with the State rules and regulations. Why is this, and how can you avoid your marijuana use from becoming an issue in your case?

There is a lack of appellate precedents in Michigan with any guiding framework for how marijuana impacts custody and parenting time. However, in the existing case law, parents have used the opposing party’s marijuana use against them under the best interest factor “F,” which is the parent’s moral fitness and is one of twelve factors taken into consideration in resolving custody disputes. Marijuana usage in any form is relevant to factor “F” only when it significantly influences how an individual will function as a parent. To clarify, how does marijuana use significantly impact one’s ability to parent their child(ren)? There is much uncharted territory in this area, and each case varies from the next.  However, following the existing case law, it is important to remember the court will look at how marijuana use has influenced/adversely affected the individual’s ability to function as a parent. Some considerations include but are not limited to:

  • Does marijuana use have a significant effect on how the individual functions as a parent?
  • Is the child awake or aware that marijuana is being used?
  • Does the parent smoke marijuana in the presence of their minor child(ren)?
  • Where is the marijuana stored in the house?
  • How often is the parent smoking marijuana?
  • How old is the child?
  • Has the child ever been injured in the parent’s presence due to the parent’s use of marijuana?
  • How does the marijuana affect the child? Has the parent been unable to care for the child or otherwise meet the child’s needs due to the parent’s marijuana use? Are there adverse health outcomes for the child (i.e., asthma) due to the parent’s marijuana use?
  • Does the child take the marijuana themselves? Is the marijuana easily accessible to the child?
  • Does the parent have any OWPD convictions (Operating with the Presence of Drugs)?
  • Does the marijuana usage negatively impact employment or one’s ability to provide financially for their child?

It is imperative to note that the Medical Marijuana Act provides that if the medical marijuana-using parent complies with the State standards, they cannot have custody altered solely based upon marijuana use. This is because the standard is “unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” Again, the focus is the marijuana’s effect on the user’s ability to function as a parent and protect their child(ren).

Bottom line: use common sense. Marijuana (recreational or medicinal) should not be an issue in your case if you follow a few guidelines:

  • Don’t use marijuana when you are around your children.
  • Don’t drive while using marijuana with or without your children.
  • Keep and store paraphernalia in a locked and secure area and out of reach and sight of your children. This is exceptionally important with edibles, so your children do not mistake them for a snack. Be smart about your use even when you are not in front of your children.
  • Do not take your children to a dispensary. No exceptions.
  • Do not be careless.
  • And remember, use your common sense.

Be well and stay safe.

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About the Author:

Kristyn Recchia is an associate attorney in Dickinson Wright’s Troy office. Her broad range of services include divorce, complex property settlements, parenting time and grand-parenting time, child and spousal support, business valuation issues, prenuptial and postnuptial agreements, change of domicile, custody, personal protection orders, Friend of the Court matters, enforcement and post-judgment matters. She can be reached at 248-205-3240 or krecchia@dickinson-wright.com and you can visit her bio, here.