Tuesday, March 28, 2023
Rounding out an exciting week of diverse student presentations in my Marijuana Law, Policy & Reform seminar, the fourth presentation scheduled for this week will look at marijuana use and parenting. Here is how my student has previewed her topic along with some background readings:
Law and practice regarding marijuana usage and regulation often proves helpful as a way to understand greater issues in our legal system. This is true in many areas of law, but perhaps even more so in the the practice of family law. When considering the effect of a parent's marijuana usage during a custody dispute, it becomes apparent just how much the unfettered discretion of judges in family law jurisprudence affects both parents' cases, but also the practice of family law as a whole.
So what causes such irregularity in child custody cases between two fit parents? The ever malleable "best interest of the child" standard which not only allows, but seemingly encourages, unabashed discretion and therefore unabashed bias from family court judges. In many states, morality is still a key factor in best interest determinations. In a society where the definition of morality varies from person to person, state to state, and county to county, it is impossible to guess whether a judge will consider marijuana usage to be moral or amoral. Or perhaps a judge will opt to compare marijuana usage to cigarette smoking which acts a "tie-breaker" between both parents. Or a judge may completely ignore the usage as commonplace and not allow it to affect their decision-making. The impossibility of knowing creates a dangerous gamble for parents who choose to use marijuana.
This is all made worse when we are confronted with the data drought surrounding marijuana and parenting, with outdated studies examining parental marijuana usage prior to more than 15 states legalized recreational usage. Without updated statistics and evidence, parents will find it difficult to demonstrate that their marijuana usage is mainstream and does not affect their parenting. This lack of data further stigmatizes marijuana using parents to judges who may already have biased ideas regarding weed usage. The stigma is perhaps furthered by the media narratives of the "cannamom," a polarizing depiction of white mothers who loudly proclaim that weed makes them better parents. Sensationalized coverage of parents who do use marijuana will only push hesitant judges further away from parents who use marijuana and allow that bias to encroach upon their best interest analysis, and thusly, parents' rights to the care of their child.
By Jane C. Murphy, "Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment" (1991)
Blevins v. Bardwell, 784 So. 2d 166 (Miss. 2001).
From USA Today, "More parents are smoking pot around kids; children inhaling second-hand smoke" (May 2018)
From the BBC, "The Cannamoms Parenting with Cannabis" (Nov 2021)