Medical or Recreational Drug Use, Child Custody and Visitation

Every state views it differently. In fact, an argument could be made that every family court judge views it differently.


Drug use. By a parent.

The potential field of drugs that may be used and/or abused is broad: cocaine, methamphetamines, heroin, too many to name really … and marijuana.

The latter of which more and more states are legalizing use of for medical purposes.

Not all the same?

Perhaps, perhaps not.

Family law and juvenile dependency law often draw no hard and fast distinctions based on the particular drug of choice – or the type of use.

In family court or juvenile dependency court, the answer to whether the particular drug of choice – or the nature of the use – matters may well depend on what state you live in … or which family court judge or juvenile dependency court judge a case – your case – happens to be randomly assigned to.

Right now, in New York City, for example, the child welfare agency may be following a policy of filing civil child neglect charges against parents caught with nominal amounts of pot and/or who have admitted to authorities using marijuana in the past. In cases where law enforcement takes no criminal legal action. But makes a notification or report to the child welfare agency hotline.

Although the criminal justice system’s hands are tied from even making an arrest, such parents still face loss of child custody of their children – or restrictions on their contact with their own children – through the family court system or the juvenile dependency court system. Often without any proof of actual demonstrated neglect or harm to their children.

And their children could be forced into foster care, at least temporarily.

Child welfare agencies often maintain that even recreational or medical marijuana users may in fact neglect their children. Fail to send them to school. Leave them unattended. Otherwise suffer impaired judgment while caring for them which exposes them to danger or risk. And, of course, that may be true.

Representatives of parents, on the other hand, counter that, once such parents are on the child welfare agency’s radar due to possession of nominal amounts of marijuana or admission of pot use, the agencies then are in a position to seek other grounds to act against the parents – and, as a result, sometimes they may in fact look for those grounds – and they may in fact find them. And, if they exist, in the context of child protection, does it matter how they were identified?

Such parents ultimately face high stakes consequences. Not only as to custody and visitation and timesharing. But also restriction of their prospects for employment working with children in a variety of capacities.

In New York, this civil court record raises a cloud over such parents until the parent’s youngest child turns twenty-eight years old.

In contrast to New York, California, which has legal medical marijuana use, now requires a showing of actual harm to children before their child welfare agency may mount a juvenile dependency case for removal of the children.

Needless to say, one may take a different view of these complex cases depending upon whether one’s vantage point is parental rights or children’s rights.

Read more in this New York Times article: No Cause for Marijuana Case, but Enough for Child Neglect.