Legal Marijuana and Divorce

Can legal marijuana use be an issue in divorce cases? Even if legal, when it comes to a custody battle, the answer might still be that marijuana and divorce do not mix.

By Katrina Otto
April 24, 2018

“Marijuana is legal in my state, so the fact that I smoke weed recreationally or for medical reasons won’t be used against me during divorce – right?"

Recreational marijuana has been legal in Washington state since 2012, and other states – such as Oregon, California, and Massachusetts – have legalized recreational marijuana use as well. With the rise in recreational marijuana use across the country, you may think that if you live in a state where recreational marijuana has been legalized, it can’t be used against you in family court. But using recreational or medical marijuana can work to your disadvantage in divorce and child custody cases.

The Washington Family Law Courts, for example, take marijuana use very seriously when deciding which parent will have primary custody. Criminally speaking, you may be in the clear: you can legally purchase and smoke weed in Washington. But, once you and your children enter the family law arena, you may need to reconsider your casual marijuana use.

State Divorce and Custody Laws Address Drug and Alcohol Abuse

In the state of Washington (where I practice), RCW 26.09.191 outlines the restrictions in both permanent and temporary parenting plans. The courts look to this law when determining if there should be any limit on a parent's time with their child. It states that:

"(3) A parent’s involvement or conduct may have an adverse effect on the child’s best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist: ... (c) a long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions."

Notice that nowhere in this statute does the term “legal” or “illegal” appear, presumably because courts don’t necessarily hang their hat on that distinction; alcohol is legal, yet I’m sure you are aware of situations in which it can severely impair parents. Rather, courts focus on the broader concern of what is in the “best interest of the child.” Like alcohol, marijuana is still a mind or mood-altering substance, and its use is certainly at play in any custody proceeding.

A 2008 case, In re Marriage of Wieldraayer, involved a custody dispute in which the mother alleged that the father’s marijuana use was “ongoing and rampant” and so requested that his time with the children be supervised. Along with a general history of marijuana use, the father in this case was alleged to have picked up the children from school after smoking and allowed his four-year-old daughter to sniff the glass while he was smoking marijuana. The father’s defense that his marijuana use was for medicinal purposes, and so his time with his children should not be restricted. The court, however, held that: “... the dangers inherent in the use of marijuana do not turn on whether or not the use is sanctioned by the State. Merely because the [father] is entitled to use marijuana to improve his medical condition…does not mean that such use is not detrimental to his young daughters… Just because [the father’s] use of marijuana was legally prescribed does not mean that he is entitled as a matter of right to unsupervised visits with his children.”

In Washington, where medical marijuana use was legalized years prior to this case, the seemingly bright line of legality of the substance was overshadowed by the broader understanding of how the father’s marijuana use impacted his behavior around his children. In the court’s eyes, it isn’t “legal” to place your child in a detrimental environment either –and courts are very protective of a child's best interests.

Marijuana and Divorce: What if You Don't Use it Around the Kids?

One distinction that may come to mind is: “but I don’t use it around my children”. This, again, is a slippery slope. When diving into a possibly heated battle over your little ones, prepare to be exposed. When at risk of losing time with your child, the other parent has the opportunity to paint you as the “bad” parent, simply by addressing your casual, although legal, marijuana usage. Limiting your use of the substance does not limit your ex’s ability to use it against you. So why give them that opportunity?

Regardless of the laws, statutes, and cases that have expanded on this overlap between child custody and legal drug use, the stigma associated with marijuana use has not been eliminated. The fact of the matter is that judges and commissioners are human too, and they are not immune to stigmas and biases. You can often argue until you are blue in the face, but the underlying impression that your drug use may have on a judicial officer may never waiver.

Marijuana and Divorce: A Weapon Your Ex Can Wield in a Custody Case

Family law is unpredictable because people are unpredictable. This includes judges, commissioners, and parents, and it is often the most frustrating aspect of any family law case. Your future, as well as your child’s, is in the hands of a decider who may not know the details of your circumstances. Thus, taking control of your situation is one of the most overlooked strategies in a family law case. If you stop using marijuana during and after divorce, then you eliminate the ability for someone – whether that be the other parent, judge, or commissioner – to wield your recreational or medicinal use as a weapon against you.

Quite frankly, if the cost of litigating is an important issue for you, then fighting a negative perception of marijuana use is certainly more expensive (and frustrating) than moving forward with a clean slate. However, it is not in your best interest to lie to the court about your use. Your credibility is an invaluable tool during divorce; don't lose it by being caught in a stupid lie.

In short, if you know your ex or the courts could use your legal marijuana usage against you, and you know this is an aspect of your case that you can control, then DON’T USE IT! Don’t create an uphill battle for yourself. You have enough to worry about in divorce.

Katrina Otto is an attorney at Morris-Sockle, PLLC, a Family Law Firm based in Olympia, Washington. She focuses her practice on divorce and family law.

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April 24, 2018

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