By John J. Schrot, Jr.

Be careful if and when you light up, or otherwise consume, marijuana, as you may get burned. Recreational marijuana has just become legal in Michigan (i.e. 10 days after the November 6, 2018 election results are certified) – at least at the state level, though the federal government still considers it illegal – as a result of the popular vote approving same.  Should you wish to indulge, consider the possible consequences if you find yourself in a divorce or a contested custody/parenting time fight.  In spite of shifting legal and cultural norms, using recreational or medical marijuana can work to your disadvantage in divorce and/or child custody/parenting time cases.

The Michigan family law courts have and will consider marijuana use seriously when deciding divorce and custody/parenting time matters.  While the purchase and use is now going to be legal, and not criminal, casual marijuana use is relevant to domestic disputes – especially when minor children are involved.  Alcohol is also legal in Michigan, yet its use can affect marital breakdowns and impair parents.  Marijuana, like alcohol, is a mood or mind-altering substance. On October 16, 2018, Michigan enacted a law barring the use, possession or sale of marijuana-infused beer, wine, liquor and mixed drinks. However, now that marijuana use is legal recreationally and medically, a complainant presumably will have to prove harm or risk as it relates to a minor child.

A court can limit or remove a parent’s custody and/or parenting time if marijuana use affects the child’s best interests.  Custody and the amount of parenting time will be determined by each family’s circumstances.  Michigan Compiled Laws 722.23 defines the “best interests of the child” in Michigan child custody law.  The courts look to this law when determining the parent’s custody and parenting time with a child.  For example, the courts look to the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.  MCL 722.23(d).  A cause of instability may be substance abuse. The statute does not refer to whether the substance is “legal” or “illegal.”  The courts focus on what may cause instability in the child’s life, and what impact does this have on the child.  Misconduct by a parent may work against that parent in a custody and/or parenting time dispute.  The concept of fault can be factored into a custody and/or parenting time decision.  Therefore, courts will take into consideration the use of any drug, prescription or otherwise, and if such use poses a significant risk of harm or danger to a child, or proves to impair a parent’s ability to care for a child.

The moral fitness of the parties involved is another relevant best interests factor according to child custody law. MCL 722.23(f). The legalization of recreational marijuana eliminates the use of an illegal substance, but there is still the consideration of whether a parent routinely and excessively consumes marijuana.  The issue becomes whether or not the marijuana use affects that parent’s ability to function as a parent. Moreover, if a parent resides with someone who has a substance abuse involvement, that too can be an issue.

In 2008, the Michigan Legislature enacted the “Michigan Medical Marijuana Act.” MCL 333.26424.  The Act states that a person shall not be denied custody or parenting time of a minor if medical marijuana is used under the Act unless the person’s behavior creates an unreasonable danger to the child that can be clearly articulated and substantiated.  Past marijuana use alone, with no evidence of current use, should not be considered when evaluating a person’s ability to function as a parent.  Demski v Petlick, 309 Mich App 404 (2015).

Factor (g) of the child custody law, relates to the mental and physical health of the parties.  MCL 722.23(g).  Possession of a medical marijuana card does not indicate unfitness.  In evaluating this factor, it must be decided if a parent’s mental or physical health poses an intentional threat to the child’s health and well-being.  Harper v Harper, 199 Mich App 409 (1993); Bowers v Bowers, 198 Mich App 320 (1993).  Michigan law punishes individuals who place a child in danger.  Many acts can qualify as “child endangerment,” and be enough to constitute criminal charges.  MCL 750.136b, et seq.  Drug use will be considered when determining whether a child was placed in danger.  Irrespective of whether recreational marijuana is legal, or a person has a prescription for medical marijuana use, the Michigan courts will focus on the best interests of the child.  Just as with alcohol, did the marijuana use, recreational or medical, place the child in danger?

Therefore, while we await the future Michigan case law now that recreational marijuana has been legalized, understand that the measure will be how a parent’s use impacts the behavior around the child.  Courts are protective, and will not tolerate even “legal” behavior which places a child in a detrimental environment.  Child Protective Services, which is responsible for investigating allegations of child abuse and neglect, may have its own prejudices.  MCL 722.621,et seq.  The stigma of marijuana use still exists, and such use can affect your rights even if you do not use it around the child.  Studies have shown it can have a negative impact on marriage.  Understandably a mismatch in marijuana use can be a reason for conflict in relationships.  If you suspect a court battle in the future, and you are a marijuana using spouse and/or parent, consider detox prior thereto and kick the habit.  Unlike alcohol, the hair follicle and/or nail screens for the use of marijuana can detect its use months after indulging.  While more states, including Michigan, have relaxed attitudes towards moderate marijuana use, we are not going to be without custody/parenting time and other court battles.  We will know more over time, when the smoke clears.

For more information and to discuss family law matters, please contact John J. Schrot at 248-645-9680 or at jschrot@berrymoorman.com.