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The Legality of Conduct and Child Custody

In the midst of a divorce or child custody proceeding, a spouse often has no hesitation in revealing apparently negative behavior or conduct of the other spouse, an action which is the product of an often-exaggerated adversarial system that encourages ruthless mudslinging. However, that same spouse might experience great difficulty in recognizing his or her own shortcomings, particularly in properly caring for his or her own child. Such a spouse may simply assume that in the absence of any illegal conduct, he or she is perfectly qualified to exercise full parental rights, despite his or her seemingly non-relevant shortcomings. However, contrary to popular belief, the absence of illegal conduct is not an automatic win; while a pot plant in the shade of your basement might not entail a criminal charge, at least in some states, it might serve as evidence in a custody proceeding of your inability to provide for the bests interests of your child.

For instance, with the recent decisions by several states to legalize the possession, growth, and consumption of marijuana comes a wave of incidents involving the interplay between marijuana and child custody. Recently, a Colorado man lost custody of his children after receiving a medical marijuana card. The daughter of a Michigan couple that grew marijuana for medicinal purposes was taken away by child protective services after an exhusband claimed the marijuana endangered her. Police officers in New Jersey visited a home of a nine-year-old after he casually mentioned at school his mother’s hemp advocacy.

These are but a few of the incidents involving child custody and marijuana, all of which underscore a major legal issue: what bearing does legally-sanctioned conduct, such as use of marijuana, have upon child custody proceedings?

The legal standard for determining parental rights over a child has always been, and likely always will be, “the bests interests of the children” – not “the legality of conduct,” “the moral nature of actions,” or even “the fairness to a parent.” Undeniably, the fight for legalization of marijuana is growing strong, both with users and their legislative representatives. However, traditional, common-sense judges, despite the hype, remain steadfast in their beliefs and do not equate use of marijuana to something as simple as “a glass of wine with dinner.” Parents who underestimate the nature of their use of marijuana often fall apart when they hear a judge say that the very presence of marijuana presents a drastic, detrimental impact upon the well-being of a child and that actual use will cause short-term memory loss, slow down reflexes, reduce attentiveness, and in turn, diminish a parent’s ability to care for that child. It is also well-known that marijuana impairs judgment, making a parent less likely to provide a prompt and responsible care in the event a child is hurt or in danger; even second-hand smoke can cause a contact high or damage the child’s lungs in the same manner that cigarettes do. In light of these facts, judges may bombard the parent with questions the judge already has the answer to: what are the benefits, what are the problems, what are the parent’s priorities, and can this parent properly care for a child? In order to leap over this difficult set of facts, questions, and answers, and ultimately persuade a judge that marijuana use somehow contributes to the best interests of a child, one has to make an extremely compelling argument which does not simply rely on legality. Unfortunately, such an argument seems quite impossible in the face of common sense.

These incidents involving marijuana and child custody highlight a not-so-obvious truth: conduct does not have to be illegal in order for it to totally preclude parental rights over a child. Conduct possibly affecting the best interests of a child in a custody proceeding is not judged by whether a legislature deems it permissible; it is judged by the intuitive, common sense of judges. Thus, above all else, parents must look past the statutes and laws of their states, and instead examine their legally-permissible conduct – whether drinking, smoking, using marijuana, or something similar – and evaluate whether such conduct really does, in the eyes of the common person, promote the best interest of their child.

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