The state of Maryland has not enacted any laws legalizing the possession, use and sale of medical marijuana, meaning that a parent found to be using the substance could lose custody of his or her children. Medicinal marijuana usage has, however, been approved in neighboring Washington, D.C. In the 16 states (and the District of Columbia) that have legalized medical marijuana, courts are grappling with the decision of how to consider medical marijuana usage when making a child custody decision.

Determining how medical marijuana should affect custody cases has been difficult for courts in the past. Most medical marijuana prescriptions do not specify dosages or the amount that the patient is allowed to purchase, making it hard to decide what level of use constitutes substance abuse. Courts must also decide if a parent’s use of medical marijuana would have to be shown to threaten a child’s health and development before revoking custody.

In one case, a divorcing couple’s parenting plan required the father to test negative on drug screenings in order to retain custody over his child, but the man soon obtained a medical marijuana license. After numerous appeals and rulings, the court eventually ruled that the father’s custody could not be revoked or limited based on his marijuana use alone. Instead, it ruled, his accusers would need to prove that his use of the substance acted against the best interest of the child. Experts believe the case could serve as a precedent in other states, providing courts across the country with guidance regarding the relation between child custody cases and medical marijuana use.

But in a state like Maryland where no action has been taken on medicinal marijuana, parents in a custody dispute should not knowingly break the law by smoking marijuana. It could have a big effect on a judge’s custody ruling.

Source: Huffington Post, “Medical Marijuana Lights Up Child Custody Court,” Edra J. Pollin, Sept. 26, 2011