Scientific research confirms that most people in Massachusetts who smoke marijuana before they have kids still occasionally get high after they become parents. But for parents in the throes of a divorce or paternity action, moderate, responsible, and even legal pot use represents a very real hazard. Despite shifting cultural and legal norms, marijuana consumption can and does come up in custody negotiations in Massachusetts.
If it's a really bitter divorce or paternity action, you may see one party that's the non-marijuana user call the Department of Children and Families, or at the very least threaten to.
There are two basic ways a parent can have their custodial rights compromised by marijuana use. The first involves the intervention of the Department of Children and Families, which typically assesses a parent's use after receiving a tip (one can guess where such tips come from). The other, more common scenario is during a contentious divorce or paternity action. Though this may vary slightly based on state laws, past cases suggest that marijuana can cause custody problems even when it's legal.
For example, in a recent case, a father who used medical marijuana prescribed by a doctor after a car accident petitioned for custody of his baby and was forced by the Department of Children and Families (acting on a tip) to take a drug test that he failed. Instead of going home with his dad, the child, who the mother could no longer care for, was put into foster care.
In another case, a grandmother who sought to obtain custody of her grandchildren was denied because she was using medical marijuana for back pain. Those children have been in state custody for a year.
Still, there's a limited amount of case law on marijuana and custody issues, making outcomes hard to predict. In Massachusetts where weed is legal, the parent presumably would have to prove harm or risk (driving under the influence, leaving marijuana where kids can access it, or abusing it to the point of mental instability). Still, it's hard to know exactly what that means in practice other than that it's likely a smoker with a contentious relationship with a former partner would be subjected to a drug test. Ultimately, it comes down to a judge's discretion.
Should you be in the midst of a divorce or paternity action, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.