Editor’s note: This is an edited excerpt from an article written by Pamela M. Copeland and Meredith E. Allen that appeared in the June 2022 edition of New Jersey Family Lawyer. Go here to read the full article and the full edition (login required).New Jersey legalized cannabis for medical use in 2010 with the Compassionate Use Medical Marijuana Act, making New Jersey one of an ever-increasing number of states plus Washington, D.C., Guam and Puerto Rico who have done so. Implementation of this act was “slow-walked” for several years, but in 2019 the Jake Honig Compassionate Use Medical Cannabis Act went into effect, renaming it and making significant amendments to the 2010 law.
Most significant for family law practitioners is that the law now states, “[a] person’s status as a registered qualifying patient, a designated or institutional caregiver, or an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, clinical registrant, or licensed testing laboratory, or as a certified medical cannabis handler, shall not constitute the sole grounds for entering an order that restricts or denies custody of, or visitation with, a minor child of the person.”
Thanks to this 2019 amendment, we have what are called anti-custody discrimination provisions in our law. In other words, there is no presumption of child endangerment simply because a parent is a medical marijuana patient. It must be proven that the parent’s behavior has a substantial adverse effect on the child. It takes more than just a parent’s use of medical marijuana to impact their custody and/or parenting time; it is the effects of that use, and thus is one of the factors in that decision, but not the sole determining factor.
In addition, CREAMMA (Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act) was signed into New Jersey law in 2021. One issue which arose as a result of this legislation is how a child’s marijuana use might affect parental rights to custody of their minor child. First violations for possession of marijuana are given a written warning. In the case of a minor, that warning would be given to the minor, and presumably not the parent. If a court later needed to determine fitness of a parent to maintain custody, how much would the parent be imputed to know about the child’s prior violations? Would a court evaluating a parent’s fitness to maintain custody see and have access to whether the child has already received a written warning? Would the written warning be kept on file and would those records be accessible and by whom? Fortunately, this has been clarified by the legislature, which now requires that the “parent, guardian or other person having legal custody” of a child under age 18 be given notice.
Other issues in CREAMMA require clarification. The statute as it relates to cannabis and Department of Children Protection and Permanency (DCPP) cases does not mention parenting time, only “rights of custody.” A logical reading would seem by necessity to encompass parenting time as well, but clarity is recommended. In addition, there is nothing in the statute specifically dealing with non-DCPP cases involving custody/parenting time and a parent’s non-medical use of cannabis. We recommend the same be done with respect to non-DCPP custody and/or parenting time cases, namely, by confirming that anti-custody discrimination provisions apply also to those cases.
Furthermore, CREAMMA states that adult use of cannabis cannot be used as the sole factor to deny a parent custody of their minor child within the DCPP context, with the highly notable exception of urine test results. And aye, here’s the rub: There’s no accurate test like a breathalyzer for booze. The ingredients in cannabis stay in the body for weeks after use, even if there’s no further usage. In other words, a person will test positive for cannabis use long after the effects have worn off. Better tests are needed and are in the development process. Meanwhile, we will have to rely on the DREs (Drug Recognition Experts) and WIREs (Workplace Intoxication Recognition Experts), who are being trained now under the new law.