Many people ask me questions about issues connected with medical marijuana and their children. Some of these are as follows: Can the State take my children from me if they find out I am a caregiver/patient?; Can the State take my child if I give him/her medical marijuana for Autism or Epilepsy, or many other illnesses?; and will I lose my children in my divorce because I am a licensed caregiver/patient?
This month, I’ll discuss the issue of divorce and child custody in the context of the Michigan Medical Marijuana Act (”the MMMA”). First, as a member of the human race, I believe in the freedom to think, speak and act in any way one chooses, so long as it does not interfere with the right to self-determination and/or property rights of others. Next, as an attorney who handles divorces, my philosophy is that except in extreme circumstances, the best interests of children are served only by remaining in the custody of both parents. Moreover, the best case scenario is that parents continue to live in the same school district, and that the children have equal parenting time and access to both parents. In short, the philosophy of freedom and the best interests of children in a divorce are the same.
Unfortunately for children, not everyone agrees with my philosophy, and custody becomes an issue in many divorces. In order to guide the courts, there is a list of 13 statutory factors which courts must analyze in order to determine custody of children in a divorce. This list and the legal analysis is far too extensive to give a detailed run down in a magazine article. However, the nuts and bolts for determining custody are whether one or both of the parties has the ability and willingness to see to the children’s financial, emotional, educational, religious (if any), and family relationship needs, in order to grow into reasonably healthy adults.
The MMMA 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.” MCLA 333.26424(c). However, even if there is no danger involved, the factors to determine custody must still be analyzed. Also, the factors could be analyzed to deny a parent custody and/or visitation. Thus, the essential question is, does the use or growing of marijuana interfere with one’s ability and/or willingness to see to the children’s financial, emotional, educational, religious (if any), and family relationship needs, in order to grow into reasonably healthy adults? If the answer is no, then the use or growing of marijuana should not even be a part of the analysis of the 13 statutory factors.
Still, there are those who will attempt to make it an issue in determining custody. In a divorce the wife/husband may attempt to label their spouse who is a caregiver as a “drug dealer”. Or, the wife/husband may attempt to label their spouse who is a patient a “drug addict”. The key to defending this type of labeling is to stand firm and impress upon the court that you as a caregiver or patient are no different than a medical patient of any kind. That ingesting or growing medical marijuana poses no more a threat to your ability to parent than being an Oxycontin or Norco patient. Fact is, it’s even safer around children than Oxycontin or Norco. After all, your marijuana meds must be locked away and out of reach of the children by law, while at the same time the Oxycontin and Norco as well as all the other prescription opiates are not required by law to be locked away from children.
It is up to you and your attorney to present the facts to the court. Your children’s well-being is at stake. Children of divorce are damaged enough, even in a shared custody arrangement. Keeping them from a parent is not only detrimental to freedom, but it causes even greater harm to the children. However, if you or your attorney do not truly believe that the cause of freedom and the best interests of children are synonymous, then you may not be successful. Therefore, if you are a medical marijuana patient or caregiver and you find yourself in a custody battle, choose wisely the person who represents you in your divorce. Save the children the harm that will assuredly come if they are denied equal access to both parents.
Like in all other aspects of life, freedom is not free. One must think, speak, and act to further the cause of freedom. But the denial of your freedom takes no action on your part, you need only keep silent and do nothing.
Till next month, keep rolling on.
Disclaimer: This is an informational article only. It is not to provide individual legal advice. If you need legal services, feel free to contact me, or any attorney of your choosing.
