As Marijuana is legalized in more and more states for medicinal and recreational purposes, its use is more common than anytime in modern history. When evaluating risks and consequences, most people start and end at: is it legal? This is a mistake and when it comes to parental rights, the consequences can be dire if you play your cards wrong.
In CPS investigations, CPS identifies marijuana use in one or more of the following ways: by eyewitness accounts (from your child(ren), other adults in the household, law enforcement or collateral contacts such as neighbors, friends or relatives who do not live in the household). CPS also uses CPS investigator observation (such as the smell of marijuana in the home or visual identification of marijuana or marijuana paraphernalia in the home), as well as by drug test. Occasionally, hearsay is used, too, but when it is, is typically used in conjunction with other evidence. When there are allegations or suspicion of marijuana or other drug use, CPS will request you submit to a toxicology screen (drug test). If they do, it is within your rights to refuse. However, if you refuse, CPS may seek a court order to force you to take the drug test. You can determine your risk by assessing the evidence CPS may have to obtain a court order, as well as the allegations in the report. You may also want to get a drug test at your own expense in the event the drug test CPS performs ends up being a false positive. If you take any prescription or over the counter medications that may turn up as a false positive on a drug test, make sure you have documentation of this from your prescribing doctor.
In divorce and child custody cases, bringing up drug use is often used as a weapon to smear the parental fitness of the opposing party. The family and juvenile courts tend to look at drug use simply: drug use, including marijuana use, makes you less safe for your children, but is not a deal by itself. However, if you use it in the home or your children are found to have been around when you do so- even once, and the reaction tends to be severe. This can lead to court-ordered drug screens, modifications in placement or visitation, or even changes in custody. Thus, avoiding this coming out in court is crucial- even better, never let your child(ren) see you partake in marijuana use and lock up your substances. Even if the lock box or safe is easily broken and the whole act is performative, it works. Also, like with CPS investigations, if a drug test is court ordered, see if, through your legal counsel or otherwise, you can get it performed at a lab of your choice.
Ultimately, neither CPS, nor the courts, care about what drugs you use or the legality of them; just how that drug use affects your child(ren). In the case of newborn infants where the mother used Marijuana doing pregnancy, CPS identifies it as a safety concern due to how marijuana use during pregnancy can affect fetal development, as well as potential developmental or physical abnormalities after the baby is born. The reason they wait to remove until the baby is born is CPS does not have jurisdiction until the baby is born. While most hospitals perform toxicology screening (drug tests) on newborn babies, this is more common at public (government-owned) hospitals than at private hospitals. Drugs such as marijuana can cross the placenta and that’s why they can test positive at birth. Drug tests are not typically performed for home births.
In cases where the infant is at home or the child(ren) are older, CPS bases its assessment solely on exposure and supervision. If you are smoking marijuana in the home (even if you’re not smoking it in front of them) or leave edibles unsecured where a child may be able to access them, this is considered a safety concern for the child and this alone can result in a substantiated case. In addition, if you are supervising your child(ren) while intoxicated with marijuana (even if it’s only a puff or two or an edible), this is also considered negligent and a safety concern. While removal is much more likely in cases where a newborn infant tests positive for marijuana in the hospital, the allegations would be substantiated in all scenarios described above.
At Heartwork Defense, we recommend you not smoke any marijuana during pregnancy- whether it’s medicinal or recreational and never smoke or otherwise partake in the presence of your child(ren). CPS and the courts do not differentiate between the two use cases. If you do take it for medicinal purposes, speak to your doctor about a different medication to take during pregnancy. We also recommend that, if possible, you give birth at a private hospital or pursue a home birth instead. If your child(ren) are older, follow a few general rules and CPS and the courts should not have any concerns about your marijuana use:
- Do not smoke marijuana in the home (this includes the entire home), even if your child(ren) are not present in the home or are in another room. Smoking outside is acceptable as long as your child(ren) are not in close proximity.
- If you are consuming marijuana, have a trusted adult who has no drugs or alcohol in their system supervise your child(ren) while you use marijuana elsewhere. Send them to a friend’s house if needed
- Do not use marijuana in any form in the presence of your child(ren).
- Store your marijuana securely in a lock box or safe in a place where it is inaccessible to your child(ren)
While marijuana has been legalized at the state level in many states across the country for both medicinal and recreational purposes, CPS may still impose consequences depending on when, where and how you use it. The family and juvenile courts could still penalize you for it. It is important to keep in mind the contexts in which it could get you into trouble: supervision of your child(ren), potential exposure to your child(ren), during pregnancy and in the home. If you don’t, custody and visitation could be at risk, allegations could be substantiated against you, or even worse- removal of your children and placement in foster care, kinship care or an institution. Family and juvenile court judges still scrutinize drug use when children are present- independent of legality. It falls under the subjective ‘best interests of the children’ the courts use to justify such decisions. Don’t let it get that far.