New Jersey Child Custody and Cannabis Use

How Could Marijuana Affect Your Child Custody Case?

New Jersey parents may be concerned about how cannabis consumption could affect their child custody case, especially after the marijuana legalization legislation that went into effect in 2021. While substance use or abuse may be considered by the family courts when determining child custody and parental rights, a 2021 New Jersey Appellate Division decision affirms that marijuana consumption, in and of itself, cannot cause the termination of parental rights. However, in all cases, family courts are mandated to prioritize the best interests of the child, and this can include consideration of how the parents’ use of legal cannabis could affect the children.

Cannabis Legalization and Child Custody in New Jersey

In the November 2020 election, a referendum was adopted to legalize the production, transfer and consumption of marijuana by people 21 and older in New Jersey. The referendum amended the state constitution in 2021, and new legislation followed shortly thereafter to modify the state’s criminal code. People in possession of one ounce or less of marijuana could receive only a written warning for first offenses, and marijuana odor was excluded from being used by police as a valid reason to engage in a search or arrest people. These reforms were prompted by the role of cannabis arrests in the criminal legal system, an issue that has sparked outrage among justice reformers, particularly due to the disproportionate effect of marijuana arrests on communities of color.

However, the legislation did not restrict itself to addressing only these criminal matters. Family lawyers have also been concerned with cannabis prohibition. The new law further stated that a person found in possession of marijuana should not be denied custody of their children or the ability to foster or adopt on the basis of their possession. This legislation, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, was signed in February 2021 along with related bills. While cannabis use is now legal in New Jersey, parents can still have reason to be concerned. A New Jersey family law attorney can provide detailed advice about how cannabis could affect your child custody case.

Marijuana Use and the Best Interests of the Child

Family courts are required to prioritize the best interests of the children. In many cases, a New Jersey divorce lawyer will argue strenuously that their client is better placed to care for the children than their client’s former partner. In other cases, both parents may be able to reach a negotiated resolution with the support and assistance of their respective divorce attorneys, depending on the circumstances of the divorce and the parents’ relationship with each other and their children.

The best interests factors considered by the New Jersey family courts do not only concern themselves with illegal activities. Legal activities, such as alcohol use, can affect a child’s well-being and mental and physical health. Specifically, the effect of any of a parent’s activities can be considered in determining child custody and parenting time. N.J.S.A. ยง 9:2-4 addresses the best interest factors, which include the parents’ ability to communicate and agree, their willingness to accept custody and parenting time, their interaction with the children, the safety of the child, the child’s preferences, the child’s needs and the home’s stability, the child’s education, the parent’s employment responsibilities and the children’s ages.

Just as a family court judge can consider a parent’s demanding work schedule in evaluating child custody or their use of alcohol while caring for the children, the judge can also consider marijuana use insofar as it affects the children. Parents can work with their family lawyer to document that their cannabis use does not involve the children or does not take place while they are actively providing child care, for example. Simply stating that one parent uses cannabis is insufficient to affect child custody, but allegations that the parent is high while providing child care to a young child may be considered in the same way as similar allegations that the parent was drunk, or otherwise under the influence, while actively providing child care.

Child Custody and Legal Substance Use

There is no bright-line rule to determine which questions a family court judge may ask when assessing substance use, including marijuana use, during a child custody case. A New Jersey family law attorney may help parents to argue their case more effectively by considering the important factors in determining whether cannabis use, like the use of other legal substances such as alcohol, could have an effect on parenting. Family courts may consider factors such as the following:

  • Whether the child is aware that marijuana is being used by the parent
  • The age of the child and their needs for care
  • Whether the child is present when cannabis is used
  • How much and how frequently the parent uses cannabis
  • Whether cannabis is kept within easy reach of the child
  • Whether a small child could accidentally consume marijuana due to storage concerns
  • Whether a parent is actively under the influence, that is, high, while caring for the child
  • Whether a parent has been in some way unable to provide sufficient care for a child due to being high while providing care

These factors could indicate ways that cannabis use could affect a parent’s ability to provide primary custody and can still be considered, even though marijuana is a legal substance in New Jersey.

Parental Rights and Cannabis Use

Cannabis use was also addressed in an Appellate Division case concerning parental rights termination. In New Jersey Division of Child Protection and Permanency v. D.H., a trial court upheld the removal of child from their parents based on substance use issues as well as the mother’s mental health issues. This case focuses on a state decision to revoke parental rights based on parental fitness and may differ significantly from many cases addressed by New Jersey divorce lawyers, where both parents are actively attempting to show that they provide superior care.

In this case, the mother’s mental health issues were considered to exclude her from primary parenting and the presence of the father was required to supervise the mother. However, the father frequently smoked marijuana while both parents cared for the children. The father also failed to attend court-ordered child care assessments. During the trial, the state Division presented expert testimony arguing that the parents’ marijuana use posed a risk of harm to the child.

The parents appealed the ruling, arguing that the cannabis legalization laws in New Jersey rendered the decision contrary to public policy. However, the appellate court upheld the termination of the parents’ rights but not on the basis of marijuana use itself. The court noted that marijuana use does not in itself support termination of parental rights, but that the specific circumstances of this case made termination justifiable. If the specific ways in which parents use marijuana could endanger a child’s health, safety or welfare, the courts may consider it a negative factor in determining a parent’s fitness or setting custody or parenting time.

Contact a New Jersey Family Law Attorney

If your New Jersey custody case may be affected by arguments over cannabis use, a divorce attorney can help represent your interests and protect your rights and those of your child. Contact the Red Bank, New Jersey, offices of Lawrence Law by calling 908-645-1000 or use our convenient online form to request a consultation with experienced family lawyer Jeralyn Lawrence.

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