On November 6, 2012, Washington State approved
Initiative 502 (‘I-502’) removing state-law criminal and civil penalties
for the production, distribution, and possession of marijuana. As a result,
parents who have had their time with their children restricted due to
marijuana use might legitimately question whether the new law provides
a basis for modifying their court order or whether the law will alter
the course of their divorce or other family law proceedings in the future.
In short, the answer is no. I-502 likely will have a minimal effect on
Washington’s family court system and courts will probably not significantly
change their position on the role that marijuana plays in custody determinations
or other family law proceedings as a result of its passage.
Custody and Visitation is Determined Based upon the Best Interests of the Child
When determining child custody or visitation schedules, family law courts
are concerned primarily with one thing: the best interests of the child
in question. They are less concerned, therefore, with what parents choose
to do in their free time or personal lives unless it affects their ability
to be an effective parent or to provide a safe and stable environment
for their child.
With that guiding principle in mind, it becomes easier to understand why
I-502 likely will have little effect on a court’s determination
in this area. If a parent uses marijuana in a way that renders him or
her a neglectful parent or places a child in danger, then its legal status
in Washington State will not weigh very heavily in a judge’s decision-making process.
It is common practice, for example, for a judge to take into account whether
a parent engages in the excessive use of alcohol when making custody and
visitation determinations. As a result, despite the fact that alcohol
is legal for adults to consume, an alcoholic parent is simply less likely
be receive primary custody of his or her child. The same will likely be
true for the legalized use of marijuana.
I-502 Does Not Render Marijuana Use “Legal”
Further, I-502 does not change the status of federal law with respect to
marijuana. Under federal law, marijuana is considered a Schedule I Controlled
Substance. Thus, even if a family law judge were inclined to permit a
parent to engage in the use of any legal drug, marijuana remains outside
of this scope under federal law. I-502 would not change a judge’s
decision making process as it does not render marijuana use legal under
federal criminal law.
What Can Be Done With Respect to Marijuana Use in Family Law Proceedings?
Initiative 502 clearly has not provided a free pass to parents who use
marijuana, either recreationally or as part of a medical treatment plan,
in a divorce or other family law proceeding. Rather than reference the
provisions of I-502, parents should instead explain to the court the how
their particular use of marijuana is responsible and develop a plan to
ensure that their use does not affect their children. Courts have been
amenable to extensive visitation as long as a court order includes restrictions
on a parent’s marijuana use, including being under the influence
of marijuana during scheduled time with the child.
For more information concerning the changing law in the area, contact
a McKinley Irvin family lawyer or read more about
child custody proceedings in Washington.