Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Will Medical Marijuana Affect My New Jersey Child Custody Case?

Over the past few decades as a New Jersey Family attorney, substance abuse frequently comes into play as I handle a New Jersey child custody case.  Now as a general rule alleged marijuana usage on the part of a parent was not something I thought would play a major role in the ultimate outcome.  An exception of this rule of thumb would be using marijuana in the presence of the minor children.  Another would be a parent’s failure to safeguard that a minor child would accidentally find their parent’s “stash.”  Of course, as a New Jersey child custody lawyer, I am aware that the playing field has now changed thanks to the legalization of medical marijuana in New Jersey.  Let’s explore further.

In 2010, New Jersey enacted the controversial New Jersey Compassionate Use Medical Marijuana Act (N.J.S.A. 24:61-1). Plain on its face, the Act allows residents of the state to use marijuana for medicinal purposes. By enacting this law, New Jersey became the nineteenth state to allow its residents to smoke marijuana for medicinal purposes. Furthermore, it became the second state in addition to Arizona to permit physicians to actually prescribe marijuana. While the Act is controversial for numerous reasons, one that is particularly of interest to New Jersey Family Courts is its impact on custody battles. The greatest question that the courts are now facing is whether a parent should be granted child custody in a divorce proceeding if he or she smokes medicinal marijuana.

Currently, New Jersey courts consider numerous factors when determining child custody pursuant to N.J.S.A. 9:2-4(c).  Most relevant to this issue is ,“the fitness of the parents.” The NJ custody statute provides that “a parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.” However, before the court can determine whether or not a parent is fit, it needs to have a standard to go by.

In 1981, the New Jersey Supreme Court evaluated the term “fit” and set a standard for future courts to follow. In the case of Beck v. Beck, 86 N.J. 480 (1981), both parents sought joint custody of their children. The Court’s primary issue was to determine whether both parents were “fit” parents to care jointly for their children. It held that to be fit, the parents at the very minimum had to be “physically and psychologically capable of fulfilling the role of the parent.” Id. at 498. The Court granted joint custody as it found that both parents satisfied the definition of “fit.”

Since the court established a standard for evaluating a parent’s fitness, the question then becomes whether smoking marijuana for medicinal purposes will affect a parent’s fitness to care for his or her child.  A common question that the court has been considering is “if a parent is so sick that he or she needs medicinal marijuana, is he or she fit enough to obtain custody over the children?” While this is a thought provoking question, the court has not yet had to directly address it. It has only considered smoking legal products like cigarettes.

In the case of Unger v. Unger, 274 N.J. Super 532 (Ch. Div. 1994), the Court held that a parent smoking cigarettes in the home had a negative health impact on the children. The children were constantly inhaling second-hand smoke, which could be detrimental to their health in the future. The Court held that health and safety of the children should definitely be a factor that courts consider when determining child custody in the future. Id.  

All told, my legal opinion is that a parent’s usage of medical marijuana will not dramatically affect a custody experts or the New Jersey Family Court’s decision-making process.  In other words, if a parent has been prescribed medical marijuana, I believe the manner in which they keep the drug (just like any other medication) will be the court’s focus.  If a parent is irresponsible with their marijuana around the minor children, this will be a negative inference as far as the ultimate custody decision.  Furthermore, the issue of whether or not the parent is still “fit” to care for the minor child while under the influence of marijuana will also be dealt with on a case by case basis.  

If you or a loved one are involved in a similar situation and have questions, please do not ever hesitate contacting me at my office to discuss.  Thank you.