As many citizens know, Nevada recently enacted a law to allow for safe, regulated access to medical marijuana from businesses. This has led many people to wonder how legally obtained medical marijuana may affect child custody disputes between conflicting parents.
It is important to first note that not all citizens are entitled to possess marijuana. For medical marijuana, citizens must obtain a registry identification card issued by the Division of Public and Behavioral Health. Holding a marijuana registry card only allows the card-holder to possess: 2.5 ounces of marijuana in any one 14-day period; 12 marijuana plants; and a maximum allowable quantity of edible marijuana plants (Nevada government source). Additionally, holding a marijuana registry card does not prevent prosecution for a number of activities, including, but not limited to operating a vehicle while under the influence, using marijuana in public, or delivering marijuana to another person.
That being said, some citizens may now legally possess and use marijuana, and some of those citizens may also be parents subject to court proceedings relating to custody disputes. In Nevada, every parent is entitled to equal rights to his or her child. This means that parents are entitled to a relationship with their children and to raise their child. Additionally, Nevada statutes state, and the Nevada Supreme Court has upheld, that parents have a fundamental right to care for and have custody of their children. When parents separate, frequently the Courts are asked to step in, and the Courts must consider multiple factors when establishing custody and visitation schedules.
The legal standard to establish custody in Nevada is “the best interest of the child.” Courts must consider numerous factors to determine what custody arrangement is in the child’s best interest. Those factors include, but are not limited to: the child’s wishes; which parent is more likely to allow visitation and a continuing relationship with the noncustodial parent; the amount of conflict between the parents; the ability of the parents to cooperate to care for the child; the mental and physical health of the parents; the physical, developmental and emotional needs of the child; the relationship of the child with each parent; and any history of parental abuse or neglect of the child or a sibling of the child.
Although the Nevada Supreme Court has not addressed this issue to date, it seems the Court would apply the same standard to medical marijuana as it does to any other prescription medication. If a parent is using prescription medication, this fact may be considered when determining custody if the Court feels it is a factor affecting the child’s best interest. For example, should any parent use prescription medication in such a way that it affects his or her ability to parent the child or to keep the child safe, the Court likely would, and should, consider this fact when determining whether that parent should have custody of the child. Similarly, if a parent is abusing medication, whether it be marijuana or another medication, the Court should consider that fact when determine what is in the child’s best interest.
However, marijuana use still frequently carries a negative connotation in our society, despite its growing acceptance. As such, the Court should be careful to not automatically consider medical marijuana use as a factor negatively affecting a child’s interests. Medical marijuana should be looked at as any other prescription drug and only considered within the realm of whether it is affecting the child’s best interest based on the facts of each particular case. It will be interesting to see where the Court takes this issue as cases present themselves in future matters.
Half Price Lawyers covers family law and the quickly evolving medical marijuana laws. If you need help in either of these areas, please contact (702) 400-0000 (Las Vegas) or (775) 400-0000 (Pahrump).