With so many folks, er, "medicating" themselves with prescription pot, you just had to see this one coming: the collision between medical marijuana and the family courts.

A California appeals court has ruled that a medical marijuana using father of a toddler is no longer required to exercise his parenting time under supervision.  The lower court found that father's use of pot placed the child at risk of "serious physical harm or illness".

The family had long been on the radar of Los Angeles County's Department of Children and Family Services.  During their investigation, DCFS interviewed father, a cement mason, who admitted to using medical marijuana for his pain and arthritis, but also stated that he never used marijuana around his toddler son.

DCFS authorized a case in the LA County family court alleging that father's legal use of marijuana rendered him occasionally incapable of  providing care for his then 18-month old child; the family court  agreed.

But not the California Court of Appeals, which held that the DCFS presented a mere scintilla of evidence, relying on inferences that amounted to speculation and conjecture regarding the correlation between the safety of the child and father's pot use.  Further, the intermediate appellate court found that DCFS failed to provide any evidence that father was unable to care for his son due to substance abuse.

The Court of Appeals' opinion is legally significant as it makes a distinction between substance use and abuse, defining the latter pursuant to the DSM-IV-TR, which defines substance abuse as:

[a] maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household); (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use); (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct); and (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights). (See DSM-IV-TR, at p. 199.)

In the California case, the DCFS simply did not make this showing.  In fact, the appeals court noted that the opposite was the case; the father was gainfully employed, had a legitimate reason to use pot, and controlled his use, keeping the substance and his use of it away from his child.

We here at the Law Blogger wonder how long it will take before such a case percolates through the court system here in Michigan, resulting in a  published and thus binding decision.  We have had the occasion to represent parents accused by the other parent of using medical marijuana during their parenting time to the detriment of the children.

In Michigan, the medical marijuana act provides some guidance in this regard:

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

This is a drama-laden issue to be sure.  Stay tuned for guaranteed future developments.

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