Marijuana has an unusual place in the law and in our opinions about parents. Here in Texas possession of small amounts of Marijuana is a Class B Misdemeanor like Driving While Intoxicated. While in other states like Colorado or Washington, possession of what would be felony amounts of Marijuana products here is totally legal. This differing treatment of the same substance leads to a great deal of confusion over the effect of marijuana on a family law case.
Perhaps surprisingly in this age of relaxing drug prohibition, the Texas Department of Family Protective Services (CPS) has and will take children from parents, and ultimately terminate parental rights, over Marijuana use. In the Interest of L.G.R. 498 S.W.3d 195 is a good example of such a case from 2016. Termination of parental rights is a two-step process in Texas. CPS needs to prove one of the grounds for termination listed in Texas Family Code Section 161.001, and that termination is in the child’s best interests. One of those grounds provides that termination is warranted when a child is born with a demonstrable presence of alcohol or controlled substance in the child’s bodily fluids. Marijuana is a controlled substance and mothers who use Marijuana during pregnancy sometimes deliver children with detectable amounts of marijuana in their bodily fluids. Mothers’ and children’s bodily fluids are tested throughout prenatal care and birth and when marijuana use is detected health care professionals report that drug use to CP, which can result in removal of the child. Ultimately if parents do not comply with their CPS service plan and stay clean, their rights can be terminated.
Of course, not everyone who uses marijuana loses their children over it or we would have a lot more kids in foster care. So, what happens in a divorce where one parent uses Marijuana and the other parent wants to restrict their parenting time or rights on that basis? Despite the clear illegality of marijuana that is not a simple question to answer. The answer will vary widely based on the extent of the marijuana use, the child’s exposure to the drug, and the feelings of the judge regarding marijuana use in general. One positive drug test by a party who maybe visited Denver for a ski trip but has a good job and no criminal history will likely have very limited effect on custody issues, but it never helps a parent’s prospects in Court. On the other hand, a parent who regularly takes cash out of the marital bank account to buy marijuana, doesn’t have good employment, has a criminal history, consistently fails drug tests, or parents the child while high will likely face limited or even supervised possession until he or she can establish safety and sobriety. Finally, it’s important that the parent seeking to restrict the other parent based on marijuana use have clean hands (and urine) themselves. A common strategy where one parent uses marijuana is to claim the other parent abuses prescription drugs or alcohol in hopes that it muddies the waters for the Court.
These questions will ultimately be put before a judge who has broad discretion to make decisions about a child. The experiences and biases that judge has will naturally inform their decision on the seriousness of marijuana use. On one hand, most judges are conservative people with great respect for the rule of law and will not look kindly on marijuana use. On the other hand, most judges have a full CPS docket with horrible cases of abuse and neglect to compare. Few judges are likely to clutch their pearls over a positive drug test, but none of them dismiss its relevance entirely. Because this is such a difficult question to answer, you need an experienced family law attorney to evaluate your situation and how it will play out before your judge.