How do our judges balance a parent’s legal use of marijuana while caring for young children and impaired judgment stemming from its use?
by Richard L. Scholz, Attorney
Licensed possession and use of medical marijuana has been legal in Arizona since 2011. It is generally accepted that, for certain health-related issues, marijuana provides pain relief. It is also generally accepted that marijuana is a mood-altering drug that can impair judgment and physical coordination.
What was not expected when voters approved the 2010 medical marijuana ballot measure is the conundrum that Superior Court judges now face in family law cases regarding balancing a parent’s legal use of the drug while caring for young children and impaired judgment stemming from its use.
Irreconcilable Issues?
The opposing forces of legal marijuana consumption and risk of harm to a minor child appear to be irreconcilable issues.
The parent who uses medical marijuana will argue that he or she has a state-issued license, no law is being broken, and the court has no authority to restrict parenting time for exercising his or her rights under that license. At the same time, the judge has a duty to protect minor children from harm.
Court-Imposed Restrictions
The conclusion that many judges reach is logical, though restrictive on the licensed user of marijuana – i.e., ordering the marijuana user to refrain from marijuana while parenting the child, in addition to not using marijuana before the child is with the parent.
This would seem to protect the child from harm, but doesn’t that infringe on the parent’s rights? Clearly, the judge’s restriction imposes on a medical treatment plan and the parent needing the pain relief must make a choice.
More Questions
What if marijuana use were made legal? Alcohol is legal and can impair judgment, but parents are not restricted from consuming alcohol when they parent. Excessive use of alcohol, however, is routinely addressed in family court settings. It would appear that central to this issue is the belief that consumption of one marijuana joint is mind-altering.
Additionally, do we risk a child being exposed to second-hand marijuana smoke? I represented a parent in a case in which an infant tested positive for marijuana on a hair follicle test, because the child’s family openly smoked marijuana. Needless to say, the child was removed from that situation.
Another factor that may cause judges to continue to restrict parenting time is the apparent proliferation of medical marijuana licenses; what was once rarely seen is becoming much more common. Does the frequency of the medical marijuana licenses being seen in court make judges wonder whether the usage is necessary medical relief or just an excuse to smoke weed?
This conundrum is not going away any time soon.
Richard Scholz is a family law attorney with the Fitzgibbons Law Offices in Casa Grande (520-426-3824).
