Arizona enacted the Medical Marijuana Act (Prop. 203) in 2010, which is regulated by the Arizona Department of Health Services. Essentially, with a doctor’s assent, marijuana is considered medicinal and the possession of the same, for that purpose, is not illegal under state law.
Despite the passage of the Act years ago, there are still problems with the legalization of marijuana in the courts. In family court, the legalization of medical marijuana can impact parenting issues.
- You share legal decision-making (FKA: custody) and parenting time with your ex-husband. You find out that he has obtained his medical marijuana card when he tells you that it is the only thing that helps him with his chronic back pain. How does the knowledge that your ex-husband may use marijuana during his parenting time affect your legal position?
- You get your medical marijuana card for a long-term diagnosis. Your ex-husband requests a court order preventing you from driving with your children in the car because he is concerned that your medicinal marijuana creates a risk of impairment. What can you do?
- You were recently involved in a car accident with your child in the back seat. You informed the responding officer that you have a medical marijuana card and he believes that you were impaired while driving. He calls the Department of Child Safety (DCS) to take temporary custody of your child, and the agency believes the child is not safe in your care. How long can your child be kept away from you, and what can you do to prove that you parent safely?
Family Court and the Impact of Medical Marijuana
There are few studies detailing that social marijuana use is dangerous or harmful. If it would bother you that a parent would have a beer or glass of wine with dinner while responsible for children, then smoking pot will probably be unacceptable to you as well. Although some judges and commissioners have begun to accept medical marijuana use as part of some parents’ lives, others may have reservations and it could affect your parenting time.
Plus, although medical marijuana is legal at the state level in Arizona, federal law still prohibits its possession or use. This can prevent some licensing agencies from allowing you to continue working in your field. Change in employment status is one of the most common reasons that separated or divorced parents return to family court in Arizona in order to modify parenting time and child support orders.
The important thing to remember is that, notwithstanding the fact that Arizona legalized medical marijuana a half-decade ago, the legal use of marijuana is still a difficult issue in family court. Although the social stigma of marijuana use has dramatically decreased in the past few years (and also in smaller courts like the Scottsdale City Court or Phoenix Municipal Court), the Family Court division of the Maricopa County Superior Court may still view your marijuana use disfavorably.
DCS, Dependencies, and Medical Marijuana
DCS is often even less amenable to medical marijuana use. If the Department believes that your marijuana-assisted treatment for your medical condition places your children at risk, they may remove your children from your care and file a dependency action in the Juvenile Division of the Maricopa County Superior Court. Most substance-related dependencies involve drug testing and counseling to ensure that you are willing and able to parent safely; however, your diagnosis and prescribed treatment of marijuana may conflict with the Department’s goal of forcing you to prove yourself substance-free. Even if you and your doctor work out a different method to treat your condition, it could take weeks or months before your TASC screenings clear up. In the interim, the Department will continue requesting restrictions and monitoring during your parenting time and play a significant role in your children’s lives.
Moreover, the TASC screening results are not as simple to interpret as the “positive-or-negative” dichotomy suggests. Many Department workers are not well-versed in reading the TASC results and will expect the results to return to “negatives” within a week or two of your last use. With more concentrated forms or higher dosages of marijuana, THC metabolites – the substances for which the urine, blood, and hair tests screen – can remain in your system for weeks or even months after your last use. In some cases, your screening results may vacillate between “negative” and “positive” over a course of weeks, even without new use, based on your body composition, diet, exercise, and various other factors. Even comparing one test to another, even if the tests were only a day or two apart, can provide dramatically different and apparently contradictory results unless the screenings are mathematically “normalized” for your hydration level the day of each test.
DCS rarely consults with laboratory managers or physicians before seeking Juvenile Court involvement, but they will sometimes respond to the data if it is presented early – and convincingly. For a parent, even a few days away from a child (or with visitation under Department supervision, only) can be excruciating. The period of weeks or months while you, the Department, your doctor, and the Courts resolve a medical marijuana-related dependency matter can be one of the most difficult and frightening times in your life.