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How Does Marijuana Use Affect Custody And Parenting Time Decisions In Michigan?

by | Aug 25, 2021 | Controlled Substance Offenses, Family Law |


In Michigan, there are two major statutes that give individuals the privilege of possessing and using a limited amount of marijuana.

  • The Michigan Medical Marihuana Act of 2008 allows the medical use of marijuana and provides protection from qualifying patients and primary caregivers for criminal liability if used correctly. A qualifying patient can possess a combined total of 2.5 ounces of marijuana or usable marijuana equivalents, and up to 12 marijuana plants kept in an enclosed locked facility.  A qualified caregiver can keep up to 2.5 ounces of usable marijuana and 12 marijuana plants per patient.  Medical marijuana can be prescribed by a medical doctor for certain qualifying conditions that include Alzheimer’s disease, cancer, Crohn’s disease, glaucoma, seizures or severe and chronic pain.
  • The Michigan Regulation and Taxation of Marihuana Act of 2018 allows any person age 21 or over to possess up to 2.5 ounces of marijuana (or more if properly locked away in the place of residence). Even for simply recreational use, any person can possess, consume, purchase or otherwise obtain, cultivate, transport or sell marijuana within the boundaries of the law.

Marijuana has the ability to create a relaxing and euphoric effect when consumed in small doses.  However, others may experience anxiety, panic or fear when too much is used, or the individual’s body has little tolerance to it.  Too much marijuana can lead to hallucinations and delusions.  If the individual consuming marijuana is responsible for children, the effects of marijuana can decrease the ability to effectively parent.  It is not uncommon for marijuana to become a subject of custody or parenting time disputes between parents.  Does marijuana use jeopardize a parent’s ability to retain custody of his or her children?

Both statutes specifically address custody and parenting time relative to marijuana use and hold that the mere consumption of the drug in compliance with the law shall not be a basis to deny or suspend:

  • The Medical Marihuana Act of 2008 states that “[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.” MCL 333.26424(d).
  • The Michigan Regulation and Taxation of Marihuana Act of 2018 states that “[a] A person shall not be denied custody of or visitation with a minor for conduct that is permitted by 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.” MCL 333.27955(3).

Marijuana use is now treated almost the same as the consumption of alcohol.  Both are perfectly legal under the law if 21 years or older, but there are legal prohibitions to making a public disturbance while under the influence, operating a vehicle while intoxicated, or endangering children due to disability by inebriation.  Marijuana consumption, like alcohol, must be done responsibly and in moderation.  If the use of marijuana creates “an unreasonable danger to the minor” such as operating while intoxicated with children in the car or physical neglect from not providing proper food and clothing, then a change in custody and parenting time can be warranted.

There can also be consequences to marijuana use that affects the ability to parent children:

  • Marijuana use that endangers children can be charged as a crime. A person is guilty of child abuse in the fourth degree if the person’s “omission or reckless act causes physical harm to a child” or the person “knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.”  MCL 750.136b(7).  Child abuse in the fourth degree is a misdemeanor punishable by up to one year in jail for a first offense, but becomes a felony punishable by up to 2 years in prison for a second or subsequent offense.  MCL 750.136b(8).
  • Children’s Protective Services can intervene where marijuana use is causing abuse or neglect to minor children. If CPS substantiates a case where children are exposed to marijuana that results in serious harm (even if adults are smoking marijuana in the same room and the children breath it in second-hand), then they can even go as far as to apply for a court order and remove the children from their home to place in foster care.

If you do consume marijuana, it is important to use common sense if you are the parent or guardian of small children.  Here are some helpful hints:

  • Do not consume or smoke marijuana in the presence of your children. Ideally, use marijuana only when you don’t have the children for parenting time, they are not home, or they are sleeping.
  • Do not consume or smoke marijuana before operating a motor vehicle that your children will be passengers in.
  • If you do have the children for parenting time, be sure to use the smallest amount of marijuana needed for pain relief. Do not use marijuana to the point that you are visibly intoxicated.
  • All marijuana and its paraphernalia should be locked in a secure place where your child cannot get to it.
  • Do not post pictures of using or possessing marijuana on social media. These images almost always find their way into a proceeding for custody and parenting time.

If you have questions about marijuana use affecting custody and parenting time or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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