Man holds child's hand, marijuana in custody cases.

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The Marijuana Regulation and Taxation Act legalized the use of marijuana state-wide in 2021. This legalization posed huge uncertainty for divorce and family law attorneys in how marijuana’s greater accessibility would affect family court/custodial cases.

Now, after two years of legal recreational use, there is a clearer picture of how the Courts will treat parents using marijuana in custody cases and divorce actions. However, the answer may not be what you think.

Can marijuana affect my custody case?

Despite its legalization, it’s important to keep in mind that marijuana is still federally classified as a Schedule 1 drug, on par with substances like heroin, LSD, ecstasy, and mushrooms. This classification signifies no recognized medical value and a high potential for abuse.

Its federal label, in addition to the historical stigma about the drug, can influence a judge’s perception in custody cases. While societal attitudes regarding marijuana are becoming more accepting, attitudes and stigma in the court system are infamously slow to change – even when new laws are created. Despite its legality, Courts often exhibit greater strictness and reservation toward parents using marijuana compared to alcohol, with cases involving people of color particularly affected.

Over the past two years, cases have demonstrated that the Family Courts treat parents’ marijuana usage similarly to alcohol consumption. While occasional usage is generally tolerated, if either substance impairs a parent’s ability to care for their child, it can lead to legal grounds to remove visitation or custodial rights.

Please note that usage of either alcohol or marijuana by a parent with a history of substance abuse can drastically change your case.

Medical Marijuana

Even with the legalization of medical marijuana in 2014, we still see the courts view this form of treatment negatively in custody cases.

Despite using marijuana as treatment and not recreation, the court still considers a parent to be under the influence while caring for their children, potentially affecting decision-making and the creation of a safe environment.

Hence, it’s vital to understand that possessing a medical marijuana card will not sway a court to permit marijuana usage during parenting time.

Arguments Used in Custody Cases

In contentious custody disputes, each party tries to demonstrate why having the child with them, rather than the other party, is in the child’s best interest. In other words, who is the “better” parent?

Marijuana use is often a tool used by spouses against one another in divorce and custody proceedings. Now that the substance’s illegality is off the table, attorneys may argue that its effect on a parent adversely impacts their ability to care for their child, or worse, endangers the child altogether.

We’ve seen this manifest in a couple of different ways. Counsel can argue that the parent using marijuana may drive impaired with the child (a Class E felony under Leandra’s Law), or that the child is exposed to secondhand smoke.

Additionally, concerns arise about accidental THC ingestion by children, as edible cannabis products can resemble candy to young children. Ingestion of adult doses or higher of THC product can directly affect a child’s health and wellbeing. Locally, the Upstate New York Poison Center has seen a dramatic increase in accidental THC product consumption by children since its legalization. In 2019, the Center only received seven calls related to exposure of children five and under but received 64 calls in 2022.

A situation like this could involve Child Protective Services and even prompt court intervention. Parents who use marijuana need to be extremely diligent in how they store it and make sure their children cannot access it. We recommend getting a medication lock box and saving the Poison Control’s number for emergencies: 1-800-222-1222.


With marijuana usage predicted to rise, this issue is certain to become a larger topic in family law. This law is still very new, and our family law attorneys are closely observing how Court trends evolve as time goes on. 

At Bousquet Holstein, we provide skilled and effective legal representation no matter the complexity or challenging circumstances in your divorce or family law matters. Our attorneys have extensive experience in handling child custody disputes – including those involving substance use. Whether you are seeking sole custody or a shared parenting arrangement, we will work closely with you to develop a customized strategy that meets your needs and the best interests of your children.

As your advocates, we recommend that clients are upfront and honest about their substance use when speaking with their attorney. If you still have questions or concerns about how substance use can affect the custody arrangement with your child, please contact Rosemary Lepiane.

Family litigation attorney Rosemary Lepiane smiles for her studio headshot.

Rosemary Lepiane

Rosemary Lepiane is a divorce and family law attorney at Bousquet Holstein PLLC. She represents clients in uncontested, litigated, collaborative, and mediated divorces. Rosemary’s goal in every case is to provide her clients with a sense of closure and stability. As the Vice President of the CNY Collaborative Family Law Professionals Board, Rosemary provides a unique skillset to her clients and endeavors to take a practical and realistic approach to matrimonial and family court matters. Rosemary is also trained in advanced divorce mediation. 

Learn more about Rosemary >>> | 315-701-6489