Editor’s note: This is an edited excerpt from an article written by Meredith E. Allen and Pamela M. Copeland that appears in the September 2020 edition of the NJSBA Family Lawyer newsletter, which is a benefit of membership in the Family Law Section. Members can read the original article and the rest of the issue here.
In the event that New Jersey enacts legislation to legalize adult recreational use of marijuana, it will be interesting to see how the courts address the issue as it relates to custody/parenting time and whether the court will address recreational use differently from medical use.
What we know is that given the court’s overriding concern for the best interests of the children, clients who use marijuana for medical purposes must be advised on how best to manage their use. How they manage, or fail to manage properly, their medical marijuana use could very well be the deciding factor in a custody/parenting time dispute.
Under federal law, the purchase, sale and use of marijuana is illegal. Despite the federal government’s policy on marijuana, 33 states (including New Jersey), the District of Columbia, Guam and Puerto Rico have enacted legislation permitting the use of marijuana for medical purposes. In addition, 11 states and the District of Columbia have legalized marijuana for adult recreational use.
In 2010, New Jersey enacted the New Jersey Compassionate Use Medical Marijuana Act, which permits its residents to use marijuana for medical purposes, provided they meet certain standards, as set forth in the statute. Despite the USDEA’s classification of marijuana as a Schedule 1 drug, NJCMMA specifically states that “[m]odern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999.”
On July 2, 2019, Governor Phil Murphy signed into law Assembly Bill 20, which makes significant amendments to the NJCMMA, including renaming it the Jake Honig Compassionate Use Medical Cannabis Act. It establishes a Cannabis Regulatory Commission, revises the requirements for patients to participate in the program, revises permit and operational requirements for those in the cannabis business, authorizes delivery of medical cannabis and provides significant legal protections for patients and caregivers.
With medical marijuana use in full “bloom” in New Jersey, and with recreational use potentially on the horizon, family law practitioners, as well as our Courts, will be facing new circumstances that almost certainly will impact the custody and parenting time of minor children. How our Courts choose to deal with these scenarios remains to be seen.
It is our obligation as family law practitioners to advise our clients on what we think is the best course of action (and non-action) which benefits their family law case, particularly when the case involves minor children and custody/parenting time issues.
If you are a family law attorney and have a client who is a medical marijuana patient, especially a parent with minor children, you should advise them to take certain precautions. While there are certainly privacy issues related to medical marijuana use, and some clients may not wish to disclose to the Court the fact that they are a medical marijuana patient, we as family law practitioners know that they may have to. Some litigants may attempt to use the other parent’s medical marijuana use against them and try to paint a picture that its use is detrimental to the children.
In our practice, if we think opposing counsel is going to try to use a certain fact against our client, we generally prefer to address it head on. So, in these instances, it may be prudent to advise the court from the get-go that the client is a medical marijuana patient, and is taking precautions to ensure the home environment is safe for their child/ren. If this issue can be disposed of early on in the case by having your client take appropriate precautions and advising the court of same, it’s one less issue to deal with as the case progresses.