Medical Marijuana Patients in California Hopeful New Law Will Help Them Regain Custody of Their Children

By Britni de la Cretaz 12/19/16

Can Prop. 64 have a positive impact on parents' custody cases? 

Parent and child holding hands.

As more and more states around the country begin to legalize marijuana for medical use, a new question emerges: what effect will it have on custody cases where children have been removed from homes due to a parent’s marijuana use?

As of the 2016 election, 28 states and Washington, D.C. have legalized medical marijuana. In California, medical marijuana has been legal for two decades; however, parents like Nathaniel Rudd say they lost custody of their children because of their marijuana use, even though his use was recommended by a doctor. But Rudd and others like him are hoping that the newly passed Proposition 64 may help their case.

Prop. 64 legalized recreational marijuana in California, but it also did something else: it added some protections for medical marijuana patients. According to The Cannifornian, that means that “California courts can no longer rescind or restrict a parent’s custodial rights solely because they have recommendations for medical marijuana.”

Jessie Gill, a medical marijuana user from New Jersey, feels strongly that parents need these protections in place. “The potential custody issues for parents that use are scary as hell,” she told The Fix. “Not only do I worry about losing access to my medication, but I also worry about prohibitionists trying to take away my children because of my medication.” Gill says she doesn’t even attend many of her son’s hockey games because they’re out of state and she worries that a state will try and seize her child, even though marijuana is prescribed to her by a doctor.

Last year, The Fix reported on another family who had lost custody of their six-month-old baby for growing marijuana in their home to treat medical conditions like multiple sclerosis and epilepsy. As we noted at the time: “The removal came despite the fact that the Michigan Medical Marijuana Act notes, ‘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.’”

Rachel Beth Wissner, an outreach associate with Massachusetts-based Family Law & Cannabis Alliance, told The Cannifornian that there is currently no real way for parents to protect themselves. “They can act completely legally under the law – even be more careful, diligent and safe than the laws require – and they can still find themselves at the mercy of child protection services and the courts solely for marijuana.”

Prop. 64 is unlikely to have much of an effect on the way custody cases are handled in California, says Robert Curtis, a family law attorney in Beverly Hills. But it does outline for the first time that there must be justification beyond someone’s status as a medical marijuana patient for authorities to limit or remove parental rights. “Time will tell how this plays out in the courts,” said Wissner. “It is certainly better than the complete lack of protections that existed before.”

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Britni de la Cretaz is a freelance writer, baseball enthusiast, and recovered alcoholic living in Boston. Follow her on Twitter at @britnidlc.