Marijuana and Family Law - an unlikely pairing

By Marie E. Matyjaszek

Now that all of the new marijuana stores are up and running in town, I figured it was a fitting time to write an article about the medicinal marijuana law and how it affects parents with minor children.  And by the way, does anyone agree with me that putting a store right next to City Hall in Jackson is pretty hilarious?

Michigan’s Medical Marijuana law, MCL 333.26424, details all sorts of specifics for those who want to grow, sell, or use medical marijuana.  The part that has come up the most in my line of work is section c, which states:  “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

The statute’s language is lenient on the person using or growing medical marijuana, and is stringent as far as the amount of proof that the other parent has to provide to show the minor child is likely to be harmed.  There is nothing in the law that prohibits children from being around your stash or plants either, which is a bit unnerving when you consider all the other safety precautions we readily install in our homes to protect children—cabinet locks and safety knobs for doors, baby gates and socket covers.  Besides, what is “unreasonable danger” anyways?  Just because something is legal doesn’t mean it’s a good idea to be engaging in that activity around your children.

A qualifying patient cannot, however, possess more than 2.5 ounces of marijuana, and a “caregiver,” a/k/a person who grows the marijuana, can have up to 12 plants per person that he or she supplies.  If you follow these guidelines, and you’ve got a registry identification card, the police can’t arrest you and they have to presume that the drug is being used for medicinal purposes.  If you’ve got a football field sized greenhouse growing, then you have some ‘splaining to do.  You’re most likely going to be arrested and it’s on you to prove it’s legitimate.

So if your child’s father or mother doesn’t follow the guidelines, doesn’t have a card, and is just growing weed to enjoy life a little more, I’d say that parent is simply a drug dealer/user and you can attempt use this information against him or her in court with respect to parenting time or custody.  The specifics of the “growing room” can be a factor to consider too, as the law does require the plants to be kept in an “enclosed, locked facility.”  (Common sense would say you should lock that up anyways if it’s your livelihood).  MCL 333.26427 sets forth things you can’t do while using marijuana, and where you can and can’t possess and smoke it.  But what are the chances that you’re going to “catch” your child’s father or mother driving while high or entering school property with weed in their pocket?  I’d say slim.  It’s not going to be easy to disturb someone’s custody or parenting time rights if they smoke or grow marijuana within the guidelines.

My concerns are that too many people are going to hide behind this law to legally continue their abuse of marijuana without fear of repercussions.  In my opinion, exposing your children to this type of excuse can have dire moral consequences.  However, there are legitimate uses for this drug and for some
people, this is the last option to alleviate their pain and illness.

I suspect that litigation in family law court surrounding the medical marijuana act will be on the rise.  After all, the marijuana business is growing.

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Marie Matyjaszek is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan.  Her blogsite is: http://legalbling.blogspot.com/.  She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.