Family Matters

What Is the Impact of Medical Marijuana and Child Custody

With the legalization of medical marijuana in Pennsylvania, how does it impact child custody cases? The answer is not so simple.

Under the Medical Marijuana Act: “the fact that an individual is certified to use medical marijuana and acting in accordance with this Act shall not by itself be considered by a court in a custody proceeding. In determining the best interest of a child with respect to custody, the provisions of 23 Pa. C.S. Ch. 53 (relating to child custody) shall apply.”

Under Pennsylvania’s Child Custody Act, the court must consider 16 factors when making a custody decision. The factors contained in the Custody Act require the fact-finder to consider not only a parent’s history of drug and alcohol use but also their mental and physical conditions.

In the recent case of HR v. CP, ___ A.3d ___, 2019 PA Super. 357 (December 18, 2019) the father in the case had restrictions on his custody based on his history of drug abuse and related issues. The father also had a medical marijuana card. The court held that the Medical Marijuana Act did not preclude the court from considering the father’s history of drug use and mental and physical conditions. Therefore, the mere fact that the father had a medical marijuana card did not create blinders for the court and it was held that the restrictions on Father’s custody were appropriate considering the father’s history of drug abuse.

Though the fact that an individual who is certified to use medical marijuana and acting in accordance with the Medical Marijuana Act shall not by itself be considered by a court in a custody proceeding, under the totality of circumstances, the individual’s custody rights may still be impacted when his/her history of drug use and mental and physical conditions are considered.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel LLP.  Mr. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure.  Mr. Bertin is the Chair of the Family Law Section of the Pennsylvania Bar Association, a Fellow of the American Academy of Matrimonial Lawyers, former Chair of the Family Law Section of the Philadelphia Bar Association, and the current Co-Chair of its Custody Committee. Mr. Bertin can be reached at 215-665-3280 or michael.bertin@obermayer.com.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.