The short answer is, yes, using marijuana can cause you to lose custody of your child. However, this is not a simple black and white rule. The ever-changing legality of marijuana use from state to state has caused pause in the Indiana legal landscape. Things such as the recent announcement by Marion County that it will not prosecute simple marijuana possession charges are part of the reason a simple yes or no cannot answer this question. It is important to know that when it comes to making a custody decision in a child’s best interests, judges treat each case as being unique in order to meet a child’s best interests. Marijuana use may or may not be viewed by a judge in a different light as compared to the use of other drugs. It is important to keep in mind that Indiana has not legalized the use of marijuana. This means, marijuana is an illegal drug, regardless of how Indiana judges feel about it, and any illegal activity could ultimately be used as a basis for modification of custody. The use of marijuana in custody proceedings is the focus of this blog post.
In the case of Smith v. McPherson1, the Court of Appeals upheld a trial court’s decision to modify physical custody of a minor child to their Father based upon the Mother’s marijuana use. Specifically, the Father in Smith filed for an emergency custody modification after two separate incidents where the Mother left the child unattended after smoking marijuana and falling asleep. The trial court refused to grant Father’s emergency motion for modification, finding that the two incidents did not constitute an “emergency.” The trial court did, however, find that modification could be based on the best interests of the child. As such, the trial court modified physical custody from the Mother to the Father, and the Mother appealed.
On Appeal, the Court found that “Mother cites no authority for support of her apparent position that a trial court errs as a matter of law when, as here, the court modifies custody from one parent to another on the basis of the first parent’s repeated drug use, which use resulted in endangerment to the child.” The Court of Appeals concluded that modification was in the child’s best interest. This is where good lawyering may assist you. Did you smoke marijuana only one time? Did your use occur or were you under the influence of the drug when you had custody/parenting time? Did your use impair your ability to care for the child, as was the case in Smith when the mother fell asleep and left the child unattended? These are all different factual situations and depending on how they are presented in the evidence, they may mean the difference between modifying custody and/or parenting time or maintaining your present status.
Marijuana use is becoming more and more prevalent in our society. You must keep in mind that it is not legal in Indiana, and therefore, using marijuana can lead to adverse consequences. If you find yourself in a situation where the use of marijuana may lead to the modification of custody of your child, know that there are options to present your case in the most effective way with skilled counsel, and while it is illegal, it is not necessarily a “nail in the coffin” in custody litigation. Having skilled counsel assist you in your modification process is key to protecting your rights. Dixon & Moseley, P.C. attorneys practice complex domestic relations throughout the State of Indiana and understand the significance of custody modification and planning for the same. This blog post is written by Dixon & Moseley, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.