What are your rights to use cannabis as a parent?
Lhe legislation that oversees recreational cannabis — the 2021 New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization (CREAMM) Act — addressed parental rights and marijuana. According to CREAMM, any person found in possession of marijuana should not be denied custody of their children or the ability to foster or adopt on the basis of their possession.
A New Jersey Appellate Division Court decision also issued in 2021 addressed marijuana consumption and affirmed that, in and of itself, cannabis use cannot cause the termination of parental rights.
In other words, if you are a parent and possess and use cannabis, these facts alone can not be the sole deciding factors in determining custody and/or taking away your rights to your children.
How cannabis use can affect children custody
Now here’s the but… In all custody cases in New Jersey, the family courts are mandated to make decisions and findings that are in best interests of the child. Whenever there is valid concern that a parent’s substance use is interfering with their children’s best interests, the courts will want to investigate this and carefully consider if and how it should impact parenting time and custody.
What warrants concern over the use of marijuana and other substances (i.e., alcohol)? Behaviors may include:
- Impairment by the substance that results in the parent neglecting their child’s physical and emotional needs.
Leaving cannabis within easy reach of children or incidents of children accidentally ingesting the parent’s marijuana. - Impairment by the substance that increases risk of harm to the child or a documented incident of harm happening while a parent is under the influence.
- Parental preoccupation with obtaining drugs. For example, missing pick up or drop off because the parent took a detour to the recreational cannabis dispensary.
Presenting evidence that your ex is abusing marijuana
If you are worried about your spouse endangering your children as a result of cannabis use, you will need to collect and present evidence in a declaration, or through testimony in court, to convince a judge to order a custody evaluation. Evidence might include witnesses, e-mails, and text messages that substantiate your claims. It’s likely the courts will also want to understand how much and how frequently the other parents uses cannabis, and in what context (i.e., is it medical marijuana prescribed for a medical condition)?
How can custody change when a parent’s cannabis use is problematic?
When the courts find that a parent’s cannabis use is harming the child (which is definitely not in the child’s best interests), consequences for custody can include:
- Supervised visitation for using parent
- Requirement that parent attends drug rehab program
- Losing custody of children temporarily (usually until rehab is completed)
- Children placed with guardian and/or in foster care
- In extreme situations, termination of parental rights
If parents do temporarily lose custody or parenting time as a result of substance use, the courts may restore the time providing there is evidence of rehab and active recovery.
There is no bright-line rule to determine which questions a family court judge may ask when assessing substance use, or what specific information they would like to see in assessing the children’s best interests. It is advised that you meet with a qualified family law attorney to carefully assess your situation and help you prepare the strongest case possible.
If you cannabis-related custody concerns, we are here to provide you with the legal guidance you need to protect your children’s best interests. Please contact us today to schedule your initial, confidential attorney consultation. Call us at 888-888-0919, or please click the green button below.
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