Family Law is fascinating; it covers every area of legal practice, from criminal, tax, to the most complex civil litigation issues. For example, if a spouse injures or (heaven forfend) kills the other spouse, there are profound legal consequences impacting the family beyond the actual injury or death. In the case of a serious injury, the injured spouse can sue the perpetrator for damages in a divorce action using what’s called a Tevis claim, named for the case of Tevis v. Tevis, which ruled that Mrs. Tevis was entitled to financial compensation from Mr. Tevis due to the physical abuse she suffered at his hand. The Court ruled that she also was entitled to have that part of her case decided by a jury, one of the few exceptions to the general rule of no juries in New Jersey Family Court. Although it was not an issue in the Tevis case, the impact of serious injury or death inflicted by one spouse on the other on any custody issues between them is obvious.

The legal restrictions on marijuana have been easing slowly ever since it was listed by the federal government in 1938 as a Schedule 1 drug, meaning it was deemed to have no currently accepted medical treatment use in the U.S. and has a high potential for abuse. Medical research done over the ensuing decades has proved this to be false, and now 32 states, including New Jersey, plus Washington, DC, Guam and Puerto Rico, have legalized marijuana for medical use. In fact, despite the United States Drug Enforcement Administration’s continued classification of marijuana as a Schedule 1 drug (along with other drugs such as heroin, methaqualone, etc.), the “New Jersey Compassionate Use Medical Marijuana Act” specifically states that “[m]odern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999″. Thus, New Jersey has recognized the medical benefits of using marijuana in certain circumstances, and has enacted legislation to permit its use in certain circumstances. In addition, as of this writing, ten states plus Washington, DC and the Northern Mariana Islands, have legalized marijuana for adult recreational use. New Jersey Governor Phil Murphy had pledged that we will join those states, as has New York Governor Andrew Cuomo. It will be interesting to see which state gets there first, if ever.

One of the challenges facing law enforcement is that there is no easy test, such as a breathalyzer for alcohol use, to determine if a person who has used marijuana legally is “stoned” to the point of being impaired. The ingredients in marijuana remain in the body for weeks after usage, even if no further usage occurs. In other words, a person will test positive for marijuana usage for weeks thereafter, long after the effects of that usage have worn off, under the tests currently available. Although much research is being done, we await better tests that will determine if a person is actually impaired by marijuana usage.

The implications of these issues on Family Law practice are obvious, particularly in the context of contested custody and/or parenting time proceedings. In determining these issues within context of separated or divorced parents, New Jersey recognizes that it is our public policy to assure minor children frequent and continuing contact with both parents. In deciding custody/parenting time issues, New Jersey Courts evaluate a variety of statutory factors, including but not limited to, “the fitness of the parents”. As noted in the statute, “[a] parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.” For more about custody and parenting time, please visit the Family Law/Child Custody section of our website.

Obviously, nobody wants their child to be cared for by a parent who is impaired, no matter the substance used. On the other hand, it would be patently unfair to punish a parent by requiring supervised or no parenting time simply because s/he tested positive for marijuana usage, when they are not impaired during that parenting time. Several other states have had to address these issues. In the State of Washington, a father was ordered to have supervised parenting time with his children, even though his marijuana use was permissible under the law for medical purposes. The Washington Court of Appeals noted “In the family law setting, the best interests of the child are of paramount importance.” A similar result happened in Maine, where the Supreme Judicial Court denied a father’s request for primary custody of his minor child, due in part to his use of medical marijuana. This was despite the fact that the Maine Medical Use of Marijuana Act specifically states that a person may not be denied parental rights and responsibilities with respect to or contact with a minor child as a result of acting in accordance with the act, meaning use of medical marijuana alone is insufficient to deny a parent his/her rights or responsibilities with his/her child. The Maine Court noted that the best interests of the child includes a consideration of whether a parent’s ability to care for his or her child is impaired, including by his or her marijuana use. In other words, it took more than just that father’s use of medical marijuana to deny his request for primary custody of his minor child; it was one of the factors in that decision.

New Jersey did not incorporate such language in our statute. While there has not yet been a reported case involving medical marijuana use and custody/parenting time, our Family Court has ruled that smoking cigarettes is a permissible parental habit to consider when determining what is in the best interests of the children, because it may affect their health and safety. The same analysis could be used for marijuana use as well, although the health hazards of smoking cigarettes including the detrimental effects of second-hand smoke are well-documented, and fewer medical
marijuana users are smoking the substance. If those options are available, they are vaping or consuming edibles. Since we do not have any reported case law yet in New Jersey regarding these issues, this area of the law remains in flux. For example, will there be a difference in how our Courts evaluate custody and parenting time in the context of medical marijuana use versus recreational use? Time will tell.

In the meantime, if you are currently a medical marijuana user and facing custody/parenting time issues, we can guide you as to how best to manage your legal usage with the least amount of impact on your case. The same level of caring guidance of course applies to the other side of this equation: if your child’s other parent is using any substance, legal or otherwise, that impairs their ability to care appropriately for your child, we will assist you in assuring that your child will be safe and free from any harmful circumstances.

These issues and more will continue to arise in contested Family Law proceedings. We stand ready to assist our clients in dealing with them when they do, with sensitivity and knowledge, whether by negotiation, collaboration, mediation, litigation or arbitration.

Pamela M. Copeland

Pamela M. Copeland is a New Jersey Supreme Court Certified Matrimonial Attorney, Mediator, and Collaborative Professional committed to providing you with the highest quality family law legal services at a reasonable cost.
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