Legal Recreational and Medical Marijuana in Washington and Child Custody

With the legalization of recreational marijuana (RCW 69.50.4013), many parents are left with questions about how marijuana use could affect child custody decisions.

Courts in Washington consider the best interests of the child in every decision. To avoid any negative effects on custody or visitation rights, parents who use medical or recreational marijuana must do so responsibly.

At Hodgson Law Office, our Spokane family lawyers are here to offer guidance on marijuana use and child custody. We’ll explain the key factors at play and provide practical advice on what to do if you or your co-parent uses marijuana.

Background: Washington Uses the Best Interests of the Child Standard

To start, it is important to understand how child custody and child visitation matters are resolved in  Washington. The state uses the interests of the child standard (RCW 26.09.002). Put another way, Washington’s custody laws hold that disputes will be resolved by figuring out what arrangement is best for the child’s health, well-being, and social development. A court can review any factor deemed relevant to protecting the child’s best interests.

A court typically looks at a variety of factors, including the emotional ties between each parent and the child and each parent's ability to provide for the child's physical and emotional needs. A history of physical abuse or neglect may have the largest impact on child custody decisions.

Marijuana Is Regulated (and Viewed) in a Similar Manner to Alcohol

Child custody cases are handled under state law. In Washington, recreational marijuana is viewed in a similar manner to alcohol. An individual over the age of 21 has the right to purchase and possess alcohol for their personal use. That a parent responsibly enjoys an alcoholic beverage on occasion will not be used as a factor against them in a child custody case. The key word is “responsibly.”

Alcohol use could be a factor in a Washington child custody dispute. A parent who uses alcohol in an irresponsible manner — alcohol addiction, drunk driving, shirking of responsibilities, etc. — could lose out on certain custody rights as a result. It is useful to view marijuana in a similar manner. A parent’s irresponsible use of (legal) recreational marijuana could be used against them.

Medical Marijuana Use and Custody

What Are the Differences Between Recreational and Medical Marijuana?

While both recreational and medical marijuana are legal in Washington, the laws surrounding their use, possession, and access differ.

Medical marijuana is typically used under a doctor’s recommendation to treat specific medical conditions, such as chronic pain or epilepsy. In contrast, any Washington resident who is at least 21 years old may purchase and use marijuana recreationally.

This distinction is important because medical marijuana users can possess up to three ounces of usable marijuana, while the limit for recreational users is just one ounce. Furthermore, patients with medical authorizations are allowed to grow marijuana at home, while recreational users are generally prohibited from doing so.

How Does Medical Marijuana Affect Child Custody Decisions?

In child custody cases, the court's primary concern remains the child's welfare. When a parent uses marijuana to relieve the symptoms of a medical condition, the court will consider whether this use is prescribed by a healthcare professional and whether the parent uses it responsibly in a way that does not endanger the child.

Washington law states that medical marijuana use alone should not be a factor in custody decisions (RCW 69.51A.120). However, it could be relevant if it impairs one’s parenting abilities or if a parent uses it in front of their child.

Proper documentation from a medical professional can help show that a parent’s use of marijuana is controlled and essential for health purposes. The court might also consider how the parent stores marijuana in their home. Parents should ensure that all medications and supplements, including marijuana, are safely stored away from children.

The Federal Prohibition Could Create Some Additional Complications

There is a complicating factor that makes recreational marijuana different from alcohol. As of 2022, marijuana use is still barred under federal law — despite being allowed in many states. For this reason, marijuana and child custody still remain a bit of a gray area in Washington. Still, the general rule is that a parent will not be punished by a family law court for responsible recreational marijuana use. Irresponsible use is another matter.

Co-Parenting and Marijuana Use

Marijuana use can sometimes lead to disputes between co-parents, especially when one parent uses marijuana and the other does not. These disputes can become more contentious if one parent accuses the other of using marijuana irresponsibly in a way that affects their child.

In such cases, the court will evaluate whether the marijuana user’s parenting abilities are affected and whether their behavior poses a risk to their child. Co-parenting arrangements may be adjusted if the court finds evidence that a child’s welfare has been compromised.

Courts often recommend that co-parents establish a clear agreement on marijuana use during parenting time. For example, both parents might agree that marijuana will not be consumed when children are present or during visitation. Such agreements help maintain a stable and healthy environment for the child and reduce disputes over substance use.

Social Stigma and Custody Decisions

Biases or Societal Judgments Around Marijuana Use

Even though recreational marijuana is legal in Washington, some parents still face social stigma for using the drug. In custody disputes, one parent may use this stigma to claim the other parent’s legal marijuana use is irresponsible. This is especially common because many people associate marijuana use with illegal substances and reckless behavior.

Overcoming Stigma with Responsible Behavior

To counter potential bias, parents should be proactive. Medical marijuana users should keep records from healthcare providers. They should also emphasize that they do not use marijuana in front of their child and that the drug does not interfere with their parenting responsibilities.

Courts care more about the facts than social perceptions. By demonstrating responsible, safe behavior, a parent can effectively address any concerns the other parent raises about their marijuana use.

Schedule a Confidential Consultation with a Spokane, WA Child Custody Lawyer

When marijuana use is a factor in a custody case, both parents can reduce conflict by prioritizing clear communication. The user can also take proactive measures in order to mitigate potential concerns, such as securely storing the drug and providing medical documentation.

If you have concerns about how marijuana use might affect your custody case, seek personalized legal advice. The Spokane family lawyers at Hodgson Law Office are here to provide the guidance and support you and your children need. Send us a direct message today to discuss your situation during a confidential consultation.