Should Marijuana Use Matter in Massachusetts Child Custody Cases?

| Feb 6, 2017 | Child Custody |

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The little-noticed provision in the new Marijuana Legalization Law states that parents’ marijuana use, possession, and cultivation can’t be the primary basis for taking away custody or other parental rights like visitation – unless there is “clear, convincing and articulable evidence that the person’s actions related to marijuana have created an unreasonable danger to the safety” of a child. 

Under Massachusetts law, reports of child abuse or neglect are investigated by the Department of Children and Families. Social workers evaluate the child’s household, including the parents and home environment, and make a determination about safety and whether the suspected child abuse or neglect is substantiated.

Massachusetts courts’ view of parental substance use whether legal alcohol or illegal drugs has been broad, rather than specific. To act, taking away a child for example, requires a connection between the substance use and parenting capacity.

A judge must find “current parental unfitness.” So occasional recreational use alone may not be seen as a critical safety issue that prompts action.

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