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Marijuana’s Role in Child Custody Disputes

Marijuana use among parents with young children has attracted a great deal of media attention recently due to stories about mothers who argue that smoking pot is no different than having a glass of wine with dinner. However, many parents are unaware that marijuana use will probably have a drastic and detrimental effect on child custody and visitation requests when seeking a San Jose divorce.

Illegal behavior of any sort can influence child custody decisions, especially if other factors are involved that indicate a parent may not be a responsible caretaker for the child. Marijuana use in California should be thought of as a kind of wobbler, California often authorizes it when there is a license, but the Federal Government still punishes its use or possession. A parent who has a medical marijuana license may not be breaking any California law, but the Court can easily see that the nature of marijuana, that it can cause short term memory loss and slow down reflexes, will often mean that the marijuana smoking parent is simply not as attentive as a parent who refrains.

Current Public opinion implies that in the future marijuana use might be legalized nationally. Nevertheless, many people in California believe that the majority of marijuana smokers do not need the marijuana, and that most of the smokers lied to get their marijuana license. Staring out with a presumption that you are a fraud will tend to undercut everything you have to say. If you smoke marijuana and want custody of your child you must be honest about that unstated (but very real and present) presumption of fraud and deal with it up front. Trying to ignore that the Court starts out thinking you are a liar will just lead you to lose.

In this attorney’s experience, the clients with marijuana use regularly also have an issue with ignoring or avoiding things they did not want to deal with. The problem with that denial approach is that the exact thing you refuse to face up to is regularly the very first thing the Court will want to talk about. Ignoring the thing the Court is most interested in hearing about generally does not lead to good results. For instance, the Court might think the following: since there is nothing about marijuana use that benefits your child(ren), many things about marijuana use that may harm your child(ren), and your use of marijuana is a case of you putting what you want to do ahead of the best interests of your child(ren), why should you have any custody? The answer to that question should be ready for the Court to hear if you want to prevail.

The standard used in child custody and visitation matters is the best interests of the child, not fairness to either parent. Focusing on what you want will not be a winning strategy in Family Court. The marijuana smoker, in this attorney’s opinion, faces a double hurdle, first show you are not a fraud and actually need the marijuana, and then show that you are an attentive and loving parent who your child(ren) need to spend time with. To win, you must bring the focus back to your child(ren).

Whether or not the marijuana use occurs when the children are present is an important factor in child custody decisions. Smoking marijuana when children are present is problematic and will probably hurt your case. Marijuana can impair judgment, making a parent possibly less likely to provide prompt and responsible care in the event the child is hurt or injured, and secondhand smoke can also cause a contact high and/or simply damage the child’s lungs like tobacco cigarettes.

Individual judges can play a significant role in the impact that marijuana use will have on child custody. Some judges are personally much more liberal than others. Some view marijuana use as similar to drinking alcohol (which generally leads to losing a custody battle, so this comparison hurts a marijuana smoker), while others believe penalties for marijuana use should be much more severe.

If you are concerned about the impact your marijuana use may have on child custody arrangements, it is important to discuss this issue with an experienced San Jose divorce lawyer as soon as possible. Do not try to hide the information from your attorney, as it is likely to be brought up if your ex is seeking custody. Your lawyer’s job is to advocate on your behalf and advise you on how to present your case so winning is possible, not to make judgments regarding your life choices. To represent your interests, your attorney needs to be aware of all relevant facts.

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