Now that recreational marijuana is legal in Massachusetts, a burning question exists: how does use of marijuana affect custody issues? If one spouse uses marijuana during a divorce, for example, how does the Massachusetts Probate and Family Court determine child custody?

For example…

Picture this fictional scenario: Cindy and Peter seek a divorce. They have one child named Kevin. Cindy is a great mother. She also smokes “pot”. Her recreational use of marijuana occurs about once or twice per week. Peter does not use marijuana. During the divorce, both parties want to obtain custody of Kevin.

Best interests of the child:

Child custody issues are determined with one objective: the best interests of the child. The Massachusetts Probate and Family Court will make child custody determinations based on what is best for the child. This may include the actions or inactions performed by either or both parents. The determination could involve concerns about a parent’s recreational or medical marijuana use. Massachusetts judges may consider the frequency of the use, the child’s age, whether the child is susceptible to using the drugs, and whether the parent uses the drug in the presence of the child. Although some may view marijuana in a similar light as alcohol, others may hold strong a bias against marijuana. It is important to note that marijuana is not legal at the federal level.

Using the above scenario with Cindy, a Massachusetts judge has substantial discretion to determine the custody of Kevin. A judge could determine that her use once or twice per week is frequent and not best for Kevin. If Peter’s attorneys are threatening to use Cindy’s marijuana use against her potential custody of Kevin, the attorneys could damage Cindy’s change of having custody or visitation of her son.

What is the marijuana is for a medical purpose?

Suppose instead of her using recreational marijuana, Cindy instead used marijuana for a medical purpose. Would her medical use of the drug negate any argument made my Peter’s attorneys that she is not fit to have custody of Kevin? Of course, this depends, but the general answer is no. A Massachusetts judge could still decide that Cindy’s use of marijuana, regardless of recreational or medical consideration, is not in the best interest of Kevin.

The best interests of Kevin are the most important determination for child custody decisions. A court does not want to award custody to a parent who could possibly put Kevin in some kind of danger. Imagine, for instance, that Kevin was diagnosed with severe asthma and that Cindy’s use of marijuana harmed Kevin or could harm Kevin as second or third-hand smoke—in that case, Cindy’s use of the substance would not be in the best interest of Kevin. Imagine instead, however, that Cindy used marijuana in a different form than smoking the substance, perhaps instead as a tea. That ingested form would not be as harmful to Kevin. These factors would all be considered in determinations made by a judge in Massachusetts.

What if the parent sells or deals drugs?

Some may want to know: Would a Massachusetts judge award custody to a parent who was a seller or dealer of drugs? It is highly unlikely that a parent who sells marijuana as a side business would receive custody of her child, though there may be some exceptions, such as the cultivation or sale of hemp-based products or CBD oil. (These products do not contain the THC that makes someone high, so as to impact the parent’s capacity around his or her child.) Even in these circumstances, a Massachusetts judge has the final determination as to which parent is the custodial parent and which parent is the non-custodial parent. Marijuana may or may not be a large factor.

What about prior use of marijuana?

Another issue that may come up in child custody disputes is a parent’s prior use of marijuana. For example, suppose that Cindy as mentioned above had used marijuana years prior to the divorce. Would her prior use be a factor in the child custody decision? Most likely not, so long as the prior use does not affect the best interests of Kevin. Courts ultimately want children to be with parents who will make the best decisions for the children and will likely not use past marijuana use against the parent, absent other issues.

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