Recreational, adult-use cannabis is illegal in the State of New Jersey. However, the issue is on the ballot for the Nov. 3, 2020 election, and medical marijuana is legal for patients who have qualifying conditions. One poll earlier this year published in NJ.com revealed 6 in 10 New Jersey voters would approve of legalizing recreational use marijuana for adults.

But how might this impact child custody issues in New Jersey?

As experienced Somerset child custody lawyers can explain, matters of child custody and parenting time take into account a host of factors spelled out in N.J.S.A. § 9:2-4, the statute covering a child’s best interests. Substance use or abuse – specifically around children – can absolutely impact a child’s well-being, regardless of whether that substance is legal or not.

Some of the elements family courts are likely to consider in such cases include:

• Does the parent use marijuana in the child’s presence?
• How old is the child? What is their background? Is the child in a vulnerable position to potentially take the drug themselves, accidentally or on purpose?
• How does the parent’s marijuana use affect the child?
• Has the child ever been injured in the parent’s presence due to the parent’s drug use?

Generally speaking, if a parent’s use of marijuana is adversely impacting the child, the court is within its power to limit or possibly even revoke one’s custody or parenting time rights. Visitations may be ordered supervised.

That said, courts are often reticent to take away child custody rights altogether. The more likely scenario would be to limit parenting time or possibly even order the parent to stop using marijuana or undergo a substance abuse treatment program. It will depend largely on the individual circumstances of the family and what the evidence reveals about the other parent’s substance abuse.

Can a Parent’s Marijuana Use be Considered Child Endangerment?

This is possible, but there is no guarantee. Of course, marijuana is designated at the federal level to be a Schedule I narcotic under the U.S. Controlled Substances Act. That means the substances have no currently accepted medical use, lack any accepted safety for use – even under medical supervision – and have a high potential for abuse. Of course, that doesn’t align with the majority of state laws (including New Jersey’s) that allow for medicinal use of cannabis or for the growing number of states that allow recreational use marijuana.

Still, the use of any illegal drug in the process of a child could be construed as endangering that child, but New Jersey child endangerment law is written broadly in this sense. It says that anyone who has assumed a responsibility to care for a child who causes the child harm that would make the child an abused or neglected child could be guilty of a second- or third-degree crime. Smoking marijuana in a child’s presence wouldn’t automatically mean that child is abused or neglected, though it’s possible there are situations where it could lead to that. Evidence of this would have to be presented to the family law court. Courts also understand that parents sometimes make mistakes, and won’t seek to deprive them of their children for a simple misjudgment, but they will look closely at whether the child was placed in a situation wherein he/she was more likely than not exposed to potential harm.

It should be noted that children can be removed from the custody of their parents or using drugs in the presence of their children or endangering them regardless of the parents’ marital status.

Even having a prescription for medical marijuana might not be a bullet-proof defense. Courts are still going to apply the best interest of the child factors. The biggest question isn’t why the parent is using the drug but whether doing so negatively affects the child – the same as it might if you were taking legal prescription painkillers for legitimate reasons.

If you are using marijuana for a legitimate medical reason, it’s a smart idea to take the same precautions as you would with any other dangerous medication by keeping it in a secure location, safely out of the child’s reach, and take it responsibly as prescribed.

In states where the drug is already legal for recreational purposes, many family law courts have analyzed marijuana use in custody cases similar to the way they would a parent’s alcohol use. Even though alcohol is legal for adults over age 21, they must still use it responsibly and in a way that won’t put their child at risk.

If you have questions about child custody or parenting time concerning your child, our dedicated legal team is available to help answer your questions.

Contact us at (732) 810-0034 or email us through our website.