Medical Marijuana and Family Law: Caution is Key

Attitudes about marijuana are changing in the United States at a rapid pace. Already legal for recreational use in several western states, marijuana usage for a documented medical purpose is permitted in 28 states. Marijuana is still classified as a Schedule I drug under the Controlled Substances Act of 1970.

The State of Michigan's legalization of marijuana for medical purposes is covered under the Michigan Medical Marihuana Act (MMMA) (MCL 333.26424).

Many clients have inquired how their marijuana use will impact their divorce, paternity or other child custody case. There is no one-size-fits-all answer, because the MMMA contains ambiguities which may permit the subjective attitudes of the Court towards marijuana to enter into the case.

Part (c) of the MMMA provides that: "(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated."

What is an unreasonable danger exactly, as the term relates to marijuana usage?

In theory, a Michigan trial court could find that any usage of medical marijuana in or out of the physical presence of children is unreasonably dangerous if the user has physical custody of a child. Does the regular use of medical marijuana, or the growing of marijuana for personal medical use constitute a danger? Does this subjective danger constitute proper cause for the court to re-evaluate a previous custody order based on the best interests of the child? In 201he Attorney General of Michigan issued an opinion which stated:

"Whether a person’s actions associated with the medical use of marihuana present an “unreasonable danger” to a child under section 4(c) of the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26424(c), is a fact-specific inquiry dependent upon the circumstances of each case. Any assertion that a person’s behavior associated with the medical use of marihuana presents an unreasonable danger to a child must be clearly expressed and supported by evidence."

Presently, there are no MCA appellate decisions or Michigan Supreme Court that address this interplay between the MMMA and custody modification based on proper cause.

There is some clarity on one point: marijuana in your system is not the same as being under the influence of marijuana. In 2013, the Michigan Supreme Court held that the MMMA permits individuals who properly possess a medical marijuana card to have marijuana in their system (i.e. marijuana shows in a blood or urine test) while operating a car. Parties using marijuana under the auspices of the MMMA can still be arrested for operating a motor vehicle if they appear to be under the influence of marijuana.

It should be clear that medical marijuana and child custody are a risky combination for Michigan parents. While participation and compliance with the MMMA does permit legal marijuana use (on a state law basis - not federal), there is no clarity that trial courts cannot hold the presence and usage of medical marijuana against parents. This is a disappointing reality, as many people with diagnosed illnesses benefit from the use of marijuana. Nevertheless, parents with an existing custody order should be extremely cautious and follow the regulations contained within the MMMA to the strictest degree.

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