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Marijuana Legalization: What Effect in Family Courts?

The recent changes to the marijuana laws in New York State have already begun to have a huge impact on people’s daily lives. While many are happy about the changes allowing recreational use, there are still those who are concerned about how such laws may affect them and their families, especially if they have had any sort of criminal history with drugs in the past. Coupled with the lack of legal precedent around this topic, many parents are wondering what their rights are when it comes to their ability to use marijuana without repercussion.

It is important to establish some baselines when talking about how the use of marijuana may affect you and your family. When legalizing marijuana, New York placed many restrictions on it, such as limiting the amount of THC it can contain, monitoring how it is produced and sold, and setting age requirements for use. With these tight restrictions in place, it is reasonable to assume that if you are following what has been allowed by New York law, you should not experience any loss of custody or parenting rights should you choose to use marijuana. Even so, a parent should still be mindful, as with any substance, as the misuse/abuse of it can give rise to concerns of neglect, abuse, or maltreatment of children.

This gives rise to another common concern—whether or not Family Court Judges and Child Protective Service (CPS) caseworkers will have a bias against users despite its legalization. With the changes to New York law, CPS has no grounds to investigate you strictly based on your legal marijuana usage. However, as mentioned prior, if there are concerns about your usage being linked to abuse or neglect, it may paint you in a negative light should you end up in court over any parenting issues. While use can paint a parent in a negative light, there are many ways to mitigate those concerns. Knowing what evidence and information to bring up in such instances could be the difference between being an assumed drug abuser or a responsible drug user. Things like how much you used, where you partook, or if you sought out any sort of counselling if you have used marijuana irresponsibly, are a few good examples of the ways to launch a convincing defense.

Regardless of whether or not your marijuana usage ended up with you being thrust into Family Court, users need to be careful. Suppose you do have an Article 10 (abuse or neglect) petition filed against you in a Family Court; who should you talk to, and what rights do you have? Usually, before you appear in court, CPS would investigate to see if the abuse or neglect claims have any substance. You are not required to talk to the case workers, and you have no obligation to let them into your home. It is important to note that anything they see or you tell them can end up in their reports and be used against you. It is also important to understand that if you refuse to cooperate with CPS and refuse to give your side of the facts, they may assume the allegations are true and proceed against you on that basis.  If you do end up in this position, and while cooperation is often recommended, you are not required to talk to anyone coming to question you without consulting an attorney first.

Many parents are also asking whether or not marijuana legalization will be retroactively applied or factored into previous Article 10 matters, that were founded on illegal drug use (marijuana.) Will courts treat its usage as a non-issue now except in cases where it is shown to be abused? The answer to this question is both a yes and a no. Since the legalization is so new, there is little established precedent on whether Judges will opt to uphold or overturn a previous decision based on marijuana usage when it was illegal versus now, when it is legal. In any case, it is important to know when and how to bring up your history with marijuana in Family Court cases where the lack of precedent to date creates an area where any mistake could cost you custodial rights.

With that being said, anyone choosing to partake in the recent legalization of marijuana should ensure that they are using it legally. Judges and caseworkers should not have a legal bias against you for use, but biases are not always easily distinguishable. By knowing your rights and the laws of responsible legal usage, you can engage in the use of recreational marijuana without the fear of losing your family.

Christian J. Root is a Partner in Tully Rinckey PLLC’s Binghamton office, where he focuses his practice in Family and Matrimonial Law. He can be reached at or at (607) 722-1520.

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