Adults over 21 can now buy cannabis products for recreational use in Kentucky. But just because marijuana is “legal” in 2022 doesn’t mean that using it doesn’t have any legal consequences. Do you or your former spouse use marijuana? Then you need to know how it could affect your rights as a parent and how you share custody of your children.
What are your rights as a parent if you want to use cannabis?
The 2021 Kentucky Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization (CREAMM) Act, which regulates recreational cannabis, talked about parental rights and marijuana. According to CREAMM, a person who is caught with marijuana shouldn’t lose custody of their children or be unable to foster or adopt because of it.
In 2021, the Kentucky Appellate Division Court made a decision about marijuana use and said that using marijuana by itself cannot lead to the loss of parental rights.
In other words, if you are a parent and have cannabis and use it, these things alone can’t be used to decide who gets custody of your children or take away your rights to them.
How using marijuana can affect who gets custody of the kids
Here’s the but… In Kentucky, family courts are required to make decisions and findings that are in the best interest of the child in all custody cases. When there is a good reason to think that a parent’s drug use is hurting their kids, the courts will want to look into it and think carefully about how it should affect parenting time and custody.
Why should people be worried about using marijuana and other drugs (like alcohol)? Some behaviors could be:
- Because of the drug, the parent can’t take care of their child’s physical and emotional needs. Leaving marijuana where kids can easily get to it or having children accidentally eat their parents’ marijuana.
- When a parent is under the influence of a drug, the child is more likely to get hurt or something bad has already happened while the parent was under the influence.
- The parents’ obsession with getting drugs. For example, a parent might miss pick-up or drop-off because they took a detour to a store that sells recreational marijuana.
Providing proof that your ex is smoking too much marijuana
If you are worried that your partner’s marijuana use could put your kids in danger, you will need to gather evidence and put it in a declaration or testify in court to get a judge to order a custody evaluation. Witnesses, e-mails, and text messages that back up what you say could be used as evidence. It’s likely that the courts will also want to know how much and how often the other parent uses cannabis, as well as why (e.g., is it medical marijuana prescribed for a medical condition)?
How can custody change if a parent's marijuana use causes problems?
When a court decides that a parent’s marijuana use is hurting their child, which is not in the child’s best interest, there can be consequences for custody, such as:
- Supervised visits for parents who are using
- Parents must go to a drug rehab program.
- Losing temporary custody of children (usually until rehab is completed)
- Children who are living with a guardian or in foster care
- In extreme cases, a parent’s rights can be taken away.
If parents temporarily lose custody or parenting time because they are using drugs, the courts may restore the time providing there is evidence of rehab and active recovery.
There is no clear rule about what questions a family court judge can ask about drug use or what specific information they want to see when deciding what’s best for the children. You should talk to an experienced family law attorney who can carefully look at your situation and help you put together the strongest case possible.
If you are worried about cannabis and child custody, we can give you the legal advice you need to protect your children’s best interests. Please call us right away to set up your first, confidential meeting with an attorney. We can be reached at (270) 558-4790, or you can click the green button below.