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Family Law

Medical marijuana use and parenting capacity

By January 3, 2017No Comments

By Gianna Huesch

With Australia’s new federal medical marijuana laws soon coming into effect, family law practitioners are keeping an eye on how courts internationally are handling custody matters involving medical marijuana-using parents.

Recently, families in California facing custody issues related to their use of medical marijuana experienced a “glimmer of hope” thanks to voters’ approval of Proposition 64 which is regarded as having added protections for medical marijuana patients:

“(It) spells out in state law for the first time that there must justification beyond someone’s status as a medical marijuana patient in order for authorities to limit parental rights.

California courts can no longer rescind or restrict a parent’s custodial rights solely because they have recommendations for medical marijuana.”

In theory, custody is supposed to be removed “only if there’s a clear threat or evidence of harm as a result of marijuana use”, such as a child having access to the drugs, or parental incapacitation. But in practice, some users have found they have been denied custody purely due to their status as a medical marijuana patient even when their children had “exhibited zero signs of mistreatment”, a claim backed up by family law practitioners.

This has been blamed on the wide discretion courts have in handling such cases and the fact that many officials in the system may still regard marijuana as a “hard drug” and view any use as a reason to remove a child from a medicinal cannabis-using parent.  Some argue that parents must never be under the influence of drugs while responsible for the care of children, and that any use at all creates impairment, while others argue that medicating people with health problems leads to an improvement in their parental capacity. Other patients have pointed out the medical marijuana that they use has been “heavy in CBD (the compound in marijuana thought to have the most medical benefits) but with almost no THC (the main compound that makes consumers high)”.

The debate continues as to whether medical marijuana use should be treated differently from recreational marijuana use in family law matters, and whether medical marijuana-using parents should be ordered to undergo drug testing and treatment or take parenting classes as recreationally using parents often are.

In Australia, the proposed medical cannabis laws have heavily restricted use, with users required to be patients suffering from serious illnesses such as MS, epilepsy, cancer or HIV/AIDS, or elderly end-of-life patients. As such, the issue is unlikely to be quite as relevant in family law proceedings in this country–for now.

Read more on the US situation: http://www.thecannifornian.com/cannabis-news/california-news/parents-facing-custody-issues-marijuana-see-hope-prop-64/

Read more on Australia’s new medical cannabis laws: http://www.abc.net.au/news/2016-10-29/medicinal-marijuana-to-become-legal-explainer/7975194

Do you need assistance with a parenting or other family law matter? Please contact Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law – your first no-obligation conference is free.

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