Medical Marijuana and Parenting Time

The best interest of the child, as defined by Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act, governs parenting time in divorce or parentage proceedings. In some cases, if it has been proven that a parent has abused alcohol or other substances, it is not uncommon for the court to impose certain restrictions to ensure that a parent’s substance abuse issues will not endanger the children. For example, if a father has problems with alcohol abuse, the court may order him to take a breathalyzer test before parenting time to ensure that the children are not being placed in a bad situation.  When a parent’s substance abuse involves illegal drugs, the court’s concerns are even greater, as there is a strong legal presumption that children should not be present while crimes are being committed.

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However, Illinois’ legalization of medical marijuana has complicated the issue. While legal in Illinois, medical marijuana is still not condoned by the federal government. As such, medical marijuana use presents new questions, particularly if the non-using parent alleges that the other parent’s medical marijuana usage endangers the children.

 

Technically, under Illinois law, it is presumed both parents are fit and the court shall not place any restrictions on parenting time, unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. Therefore, unless it can be proven by a preponderance of the evidence that a parent’s use of medical marijuana endangers the children, parenting time should not be restricted.

 

However, medical marijuana differs from traditional prescriptions. For example, when a doctor prescribes medical marijuana to a patient, the patient is given a card which allows them to purchase up to a certain maximum quantity of cannabis from a dispensary each month.  Often times, the monthly allotment is quite substantial.  Unlike other prescriptions, which for example might specify 200 milligrams twice daily, doctors do not designate a “dosage” of medical cannabis.  Instead, the patient is permitted to use as much or as little as he sees fit, up to the maximum monthly allotment.

 

Further, unlike alcohol, marijuana use is not easy to measure, making it difficult to determine if someone is impaired. There is no breathalyzer equivalent for marijuana. The principal psychoactive constituent of cannabis is tetrahydrocannabinol, or THC.  The only effective ways to measure whether someone has THC in their system are through blood or saliva tests.  However, THC stays in one’s system for an extended period of time.  It is possible for an individual who has not recently used marijuana to test positive for THC. Therefore, a positive test result does not necessarily mean that a user is impaired.

 

Attempting to measure impairment poses another complicated question. As with alcohol, the Illinois Vehicle Code defines certain “legal limits” for determining when a person is too impaired to drive after using marijuana.  First, they are prohibited from driving within two hours of use.  Second, they are prohibited from driving if their blood contains more than 5 nanograms of delta-9-tetrahydrocannabinol per milliliter of blood.  However, regular users of medical cannabis typically have THC levels in excess of these legal limits, often without any noticeable signs of impairment.  Thus, the Illinois Vehicle Code exempts medical marijuana patients from the legal limits that apply to everyone else.  If Illinois law states that people with those THC levels are sober enough to drive, it is hard to argue that they aren’t sober enough to exercise parenting time with their children.

 

In addition, there are many different ways to consume marijuana, including smoking, ingesting edibles, or placing oils on the skin. Each method has a different effect on each individual.  Depending on the method of consumption and the particular patient, it may have a stronger effect or a more delayed effect.  These variables make application of the “legal limits” contained in the Vehicle Code an inexact science.

 

In short, it is difficult to discern whether a medical marijuana patient is using or abusing his medication.  Without any easily-applied tests, it is difficult to prove one way or another if a medical marijuana patient poses a danger to his or her children’s safety which might warrant restrictions on parenting time.

 

Many judges are inclined to side-step the legal question about whether medical marijuana use poses a danger to children by simply prohibiting use of medicinal marijuana during parenting time, and for a specified period of time beforehand.  However, that may raise bigger issues.  Specifically, the symptoms for which the medical cannabis is prescribed may be extremely serious, such that intoxication might be the lesser of two evils.  For example, if a patient uses medical cannabis to deal with debilitating, sudden-onset migraine headaches, he or she may be a more capable parent while under the influence of marijuana.  In such cases, requiring a parent to refrain from using for an extended period of time may be counterproductive.

 

Despite the fact that medical cannabis is legal at the state level, there is still a strong stigma against it in the family courts.   The fact that it is illegal at the federal level also implies a degree of risk that many judges are not comfortable with when it comes to parenting time with children.  The newness of the issue and the unsettled nature of the law means that having an experienced attorney is especially important in such cases.  Contact us for a free consultation.