Senate Bill Impugns Medical Marijuana for Custodial Parents

Over the five years since Michigan's Medical Marijuana Act was passed through voter initiative in November 2008, we've had many cases in family court where a parent's medical marijuana use was raised as an issue in the case.  Generally, family court judges do not shine to pot smoking parents.

Now, the Michigan Senate has taken-up the cause with a bill introduced by Senator Rick Jones, a former Sheriff from Eaton County.  The bill, enrolled in the Judiciary Committee, gives a family court judge the power to review a parent's pot use, even when sanctioned by a properly issued medical marijuana card.

If passed, Senate Bill 736 would provide that when a judge makes a finding that a card-carrying medical marijuana patient's use of pot interferes with that parent's ability, judgment, or skill to parent her child, then the judge could order any of the following remedies:

• Compel the patient to execute a release so the court could review the underlying medical condition on which the medical marijuana card is based, and allow the court to examine the relationship between the patient and the qualifying physician that endorsed the parent's pot use; 

• Compel the parent to submit to an independent medical examination to determine whether the parent's continued use of medical marijuana remains necessary or whether an alternative medication would be in the "parent's best interest"; [Wow]

• Enjoin the parent from the continued use of medical marijuana if, upon the court's review of the parent's medical records, it appears that continued use of medical marijuana is not in that parent's best interests; [also Wow]

• Allow the parent to continue her use of medical marijuana under the "qualified physician's directive", and under the continued review of the patient/parent's medical records for the duration of the custody case, "to determine whether there is reason for concern" that the parent's continued use of medical marijuana interferes with that parent's ability, judgment, or skill to parent the child; and 

• The ominous "catchall" of issuing, "any other order that the Court considers necessary that is otherwise within the authority of the court in the best interests of the child."

Putting a medicated parent under the microscope in family court is nothing new.  But this proposed legislation, which we here at this blog do not see passing, would drag the family court judge and the treating physician into the medical marijuana arena.

In the unlikely even that this bill passes into law, just sit back and watch the sparks fly...

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Medical Marijuana Parent Not Disqualified for Custody

Like with the use of any other prescription medications, a parent who uses medical marijuana is not disqualified from custody in a family court according to the Michigan Attorney General.  If the pot-medicating  parent, however, exhibits behavior that is unreasonably dangerous to a minor child, the immunity provided by the Michigan Medical Marijuana Act [MMMA] may not be available.

Attorney General Bill Schuette was asked for an advisory opinion by State Senator Rick Jones (R-Grand Ledge) on the issue of whether the MMMA can be invoked by a parent who is the subject of a child protective proceeding, and what constitutes behavior creating an unreasonable danger for a minor child.

In a well-crafted 17-page opinion, the AG zeroed-in on the specific provision of the Act dealing with pot and  children, and noting the exception to that provision.  Section 4(c) of the MMA states:

A person shall not be denied custody or visitation of a minor for acting in accordance with this Act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

As for what type of pot-related behavior constitutes the creation of such an unreasonable danger, the Act does not say.  According to the Attorney General, an individual assessment would need to take the specific circumstances of the parent and child into account.  Certainly, things like substance abuse and addiction are legitimate inquiries relative to a juvenile protective or custody proceeding.  The MMA will not provide immunity in a family court from taking such things into account.

AG Schuette opined, "the medical use of marihuana alone does not create an unreasonable danger to a child."   Schuette cautioned in the opinion, however, that if a parent's use of marijuana negatively impacts that parent's ability to properly care for a child, it could be part of the overall custody assessment.

Germane to a custody investigation is whether the parent, while high, is sufficiently functional and thus capable of parenting a minor; the child's age is an important factor; whether, once high, the parent can drive the child to safety if an emergency arises; and does the child have asthma that could be affected by second-hand marijuana smoke.

These are a few of the concerns we conjured up over here at the electronic divorce lawyer.  The best course of action, we think, is not to get high, or  take other mood altering substances, around your children.

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