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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.
Can Using Marijuana Affect Child Custody?
Yes, marijuana use can affect child custody decisions, but not in the way many parents fear. From a strictly legal standpoint, responsible marijuana consumption by adults over 21 is legal in Washington. However, family courts examine whether any substance use, including legal marijuana, impacts your ability to parent safely and effectively.
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). Courts specifically examine each parent's involvement with substance use under the guidelines in RCW 26.09.187(3)(a).
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. Spokane County Superior Court and other county courts pay particular attention to:
- History of substance abuse or addiction
- Driving under the influence with children present
- Exposing children to secondhand smoke
- Storing marijuana safely away from children
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 keyword 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.
While marijuana remains federally prohibited, Washington family courts focus on state law and how marijuana use affects parenting abilities rather than its federal status.
Medical Marijuana Use and Custody
Medical marijuana users have additional protections but also responsibilities in custody proceedings.
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?
Washington law states that medical marijuana use alone should not be a factor in custody decisions (RCW 69.51A.120). However, courts in Stevens, Lincoln, and Adams counties still examine whether medical use affects parenting abilities.
Proper documentation from healthcare professionals helps demonstrate the controlled and essential use of the parent in question. Courts also consider storage safety, as all marijuana in the home must be secured 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.
Practical Guidelines for Parents Who Use Marijuana
Parents who use marijuana legally can protect their parental rights by following specific guidelines during custody proceedings.
Safe Storage Requirements
Is it legal to possess or use marijuana around children? Yes, but with strict conditions. Never consume marijuana in your children's presence, and always store it in locked containers out of reach.
Documentation Best Practices
Keep detailed records of:
- Medical marijuana authorization documents
- Purchase receipts from licensed dispensaries
- Any agreements with your co-parent about substance use
- Negative drug test results, if requested by the court
Avoiding Common Mistakes
Parents often face custody battles when they:
- Drive after marijuana consumption
- Allow marijuana regularly in spaces where children play
- Post about smoking cigarettes or marijuana on social media
- Fail to secure their marijuana properly
Co-Parenting and Marijuana Use
Marijuana use can lead to disputes between co-parents, especially when negative associations remain from its previously illegal status. Some parents still view marijuana consumption as inherently dangerous, creating conflict even when use is responsible.
Creating Clear Agreements
Courts recommend co-parents establish written agreements about:
- No marijuana use during parenting time
- Safe storage protocols in both homes
- Transportation arrangements if either parent uses marijuana
- Communication about any substance-related concerns
When Disputes Arise
If your co-parent raises concerns about your marijuana use in custody proceedings, document everything. Courts distinguish between responsible adult use and behavior that endangers children. Parental alienation sometimes involves false accusations about substance use.
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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.
Secure Your Children's Future with Help from Spokane Family Law Professionals
We offer the support and knowledge you need to navigate complex custody matters involving medical or recreational marijuana. Schedule a free confidential consultation to secure your child’s well-being.
FAQ
Can I lose custody for using legal marijuana?
Not for legal use alone. Courts focus on whether your marijuana use affects your parenting. Responsible use when children aren't present typically doesn't impact custody. However, driving while smoking marijuana or exposing children to smoke could result in custody modifications.
What if my ex uses marijuana and I don't?
You cannot use your ex's legal marijuana use as the sole basis for custody modification. You must prove their use endangers the children or impairs their parenting. Document specific incidents rather than making general accusations.
Do drug tests distinguish between medical and recreational marijuana?
No, standard drug tests only detect THC presence, not the reason for use. If court-ordered drug testing is required, bring medical documentation to explain any positive results.
Can Child Protective Services get involved for marijuana use?
Child Protective Service involvement depends on the circumstances. Legal marijuana use alone rarely triggers CPS action. However, criminal proceedings may follow if you provide marijuana to minors or drive impaired with children.
How do courts in Eastern Washington view marijuana differently?
While state law is uniform, judges in rural counties may have different perspectives than those in the Spokane County Superior Court. Working with local attorneys who are familiar with the specific custody types in your jurisdiction can be beneficial.
