The Effect of Medical Marijuana on Child Custody

April 10, 2023

The proper and legal use of medical marijuana treatment by a parent should not solely affect their custody proceeding. A parent is permitted to use marijuana in accordance with the law and pursuant to the doctor’s recommendation.

Qualifying Conditions

When discussing this topic, individuals should be aware of several important statutes . In Ohio, medical marijuana has been established by both the Ohio Revised Code (O.R.C. 3796) and Ohio Administrative Code (O.A.C. 3796). Pursuant to Ohio law, there are several conditions that qualify a parent to obtain a medical marijuana license. Some of those conditions include: Chron’s disease, epilepsy or other seizures, fibromyalgia, inflammatory bowel disease, pain, either chronic and severe or intractable including arthritis, chronic migraines and complex pain syndrome, and PTSD.

Just because a parent has a qualifying condition, does not mean they have free reign to use marijuana in any manner. For reference, a parent cannot use marijuana in the form of smoking for it to qualify as a medical marijuana treatment. However, vaping is an acceptable treatment. Additionally, a patient receiving medical marijuana treatment cannot grow it and can only have a 90-day supply at time. Another important condition is that there is no reciprocity of medical marijuana license between the states. Unless you have a license through Ohio, you cannot use marijuana for medical treatment in Ohio.

Determining Custody Agreements

In a custody proceeding, a Court will need to determine both custody and a parenting schedule. Under O.R.C. 3109.04, the Court will review several factors to determine custody. This includes specifically the mental and physical health of the parties.

Under O.R.C. 3109.051, the Court will designate a parenting schedule that is in the best interest of the minor child. The Court will consider the health and safety of the child, as well as the mental and physical health of all parties. For custody and parenting time, a Court will consider whether a household member was convicted or plead guilty to a criminal act involving neglect or abuse of a child.

A parent using medical marijuana in accordance with R.C. 3796 cannot be the sole basis for determining a child is an abused, neglected or dependent child. A Court cannot modify a change in custody or parenting order if the only supporting fact is that a parent is using medical marijuana. However, if a child is found be unsafe, the Court may make the necessary modifications to a custody and parenting order.

Improper or Excessive Use of Medical Marijuana

A parent’s use of marijuana alone does not necessarily permit a change in custody or residential parent. However, an improper or excessive use of medical marijuana can be a factor in a final determination of custody or designation of residential parent. If a parent is found in possession of or is using marijuana, and later get a medical marijuana card, the Court can take that into consideration. The Court can determine whether a party getting a medical marijuana card to legitimize their use of marijuana is credible. In all cases, a Court has the ability to review the credibility of the parties. Depending on the qualifying conditions and totality of circumstances, the Court may find it is appropriate use and would not affect the case.

Following Proper Measures

Medical marijuana is not technically prescribed but a physician provides their recommendation. A parent with a qualifying condition, and with a recommendation from a physician, is required to register with the Ohio Medical Marijuana Control Program. They will activate their registry card within the online Patient & Caregiver Registry. Once their card is activated they will bring the card to a dispensary to purchase medical marijuana. You do not get medical cards at dispensaries, but from physicians. Physicians are permitted to review a patient’s dispensary purchase through the Ohio Medical Marijuana Control Program. They can monitor and limit the dose amounts. A physician can also terminate their recommendation.

Parents with qualifying conditions and who follow the proper measures should feel confident in their custody cases. However, it is important to keep following their physician’s recommendations as to their dose and treatment.

Best Practices

Even though medical marijuana treatment alone may not affect your case, it is important to understand there are other factors that may. In addition, it is always best practice to tell your attorney of your use and provide a copy of the registry card. For more information, or to discuss further, please contact KJK Family Law Partner Carly Boyd (CBOYD@kjk.com; 216.736.7254).