Legal Weed and Family Law in New Jersey POST-LEGALIZATION UPDATE
Our prior blog on this topic laid out some of the basic issues regarding legal weed and family law in New Jersey. We pointed out that several states had included non-discrimination provisions in their statutes which protect medical cannabis patients who are involved in custody/parenting time issues in family court. In states with these non-discrimination provisions in their statutes, the use of medical marijuana alone is insufficient to deny a parent his/her rights or responsibilities with his/her child.
We lamented the fact that New Jersey did not incorporate such language in our 2010 medical cannabis statute, but that changed when it was revised in 2019. New Jersey’s statute now specifically states, “A person’s status as a registered qualifying patient, a designated or institutional caregiver, or an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, clinical registrant, or licensed testing laboratory, or as a certified medical cannabis handler, shall not constitute the sole grounds for entering an order that restricts or denies custody of, or visitation with, a minor child of the person.” While lauding this development, we respectfully suggest the legislature further amend the statute’s language to eliminate the term “visitation” and replace it with “parenting time”, which then would be consistent with other New Jersey family law statutes.
Now that New Jersey has joined 16 other states, Washington, DC and the Northern Mariana Islands in making cannabis legal for adult use, what if any impact does the new legislation have on family law issues? The answer is both not much and a lot. Not much, because in the 250 or so pages in the CREAMM (Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization) Act, only a couple of paragraphs pertain specifically to family law. It ostensibly gives people dealing with the Division of Child Protection and Permanency (DCPP fka DYFS) the same legal protections as custody/parenting time litigants who are medical marijuana patients, namely, no presumption of child endangerment simply because that person uses cannabis.
In other words, people dealing with DCCP should now have those same legal protections. It should be proven that the person’s behavior has a substantial adverse effect on the child. It should take more than just that use to impact their custody, because it is the effects of that use that matter, and thus should be one of the factors in that decision, but not the sole determining factor.
This should have a positive impact on DCPP cases. Should, should, should – you’re not supposed to “should” on yourself. But the following language is troubling: “nothing in this paragraph shall preclude any action or proceeding by the division based on harm or risk of harm to a child or the use of information on the presence of cannabinoid metabolites in the bodily fluids of any person in any action or proceeding.” This has the potential to continue to wreak havoc in the lives of litigants in DCPP cases, because as noted previously, those substances remain in the body long after the effects have worn off. Any DCPP litigant can be required to give a urine sample which could show the presence of cannabinoid metabolites, the proverbial “hot pee”, even though the effects of cannabis usage no longer exist.
CREAMMA states that adult use of cannabis cannot be used as the sole factor to deny a parent custody of their minor child within the DCPP context, with the highly notable exception of that “hot pee” issue. And aye, here’s the rub: There still are no accurate tests like a breathalyzer for booze. Better tests are needed, and are in the development process. Meanwhile, we will have to rely on the DREs, Drug Recognition Experts, and WIREs, Workplace Intoxication Recognition Experts, who are being trained now under the new law.
Other issues in CREAMMA require clarification. The statute as it relates to cannabis and DCPP cases does not mention parenting time, only “rights of custody”. A logical reading would seem by necessity to encompass parenting time as well, but clarity is required. In addition, there is nothing in the statute specifically dealing with non-DCPP cases involving custody/parenting time and a parent’s non-medical use of cannabis. We recommend the same be done with respect to non-DCPP custody and/or parenting time cases, namely, by confirming that anti-custody discrimination provisions apply also to those cases.
How New Jersey judges will consider these new provisions remains to be seen. Will New Jersey Courts look to other jurisdictions to see how they interpreted similar provisions when determining these issues? Despite these recent developments, given differing opinions on the use of cannabis, family law practitioners have to wonder how diverse custody/parenting time decisions on these issues may be, depending upon the personal beliefs of a particular judge. And will there be a difference in how our Courts evaluate custody and parenting time in the context of medical cannabis use versus adult use? Time will tell.
We reiterate, current cannabis users who are facing custody/parenting time issues will require guidance as to how best to manage their legal usage with the least amount of impact on their cases. The same level of guidance of course applies to the other side of this equation: if a child’s other parent is using any substance that impairs their ability to care appropriately for their child, they will require assistance to ensure that their child will be safe and free from any harmful circumstances.
These issues and more will continue to arise in contested Family Court proceedings. We stand ready to assist our clients in dealing with them when they do, with knowledge, sensitivity and clarity, 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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