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Can Legal Marijuana Usage Cost you Custody of your Children? An Attorney Weighs In

Home / Divorce Blog / Can Legal Marijuana Usage Cost you Custody of your Children? An Attorney Weighs In

Legal Marijuana Usage in Washington Could Affect your chances of Gaining Primary Custody

Divorce Lawyers for Men Attorney Katrina Otto discusses the legal complexities of this issue

“Marijuana is legal in Washington, so it shouldn’t be used against me.”

Yes, recreational marijuana has been legal in Washington since 2012. You may know people that regularly use it, and you may even partake yourself. You may think that since it’s legal to use marijuana in Washington, it can’t be used against you in family law courts. But, using marijuana, even recreationally, can work to your disadvantage in custody & divorce cases.  The Washington Family Law Courts take marijuana usage very seriously when deciding which parent will have primary custody.


Criminally speaking, you may be in the clear; you can smoke weed and purchase it in Washington. But, once you and your children enter the family law arena, it might be to your advantage to take a second look at your casual marijuana use.


Let’s start with the Washington law:

RCW 26.09.191 outlines the restrictions in parenting plans, both permanent and temporary, and is what the courts look to when determining if there should be any limit on a parents time with a child.

It states in relevant part:

(3) a parent’s involvement or conduct may have an adverse effect on the child’s best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist:

(c) a long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions.


Notice that nowhere in this statute does the term “legal” or “illegal” appear, presumably because courts don’t necessarily hang their hat on that distinction; alcohol is legal, yet I’m sure you are aware of situations in which it can severely impair parents. Rather, courts focus on the broader concern of what is in the “best interest of the child”. Undoubtedly, like alcohol, marijuana is still a mind or mood-altering substance, and its use is certainly at play in any custody proceeding.

Consider the 2008 case, In re Marriage of Wieldraayer, 147 Wash. App. 1048 (Wash. Ct. App. 2008). This case involved a custody dispute wherein the mother alleged that the father’s marijuana use was “ongoing and rampant” and requested that his time with the children therefore be supervised. Along with a general history of marijuana use, the father here was alleged to have picked up the children from school after smoking and allowed his four-year-old daughter to sniff the glass while he was smoking. The father’s defense that his marijuana use was for medicinal purposes, and his time with his children should therefore not be restricted, was met with clear disagreement from the courts, holding that:

“the dangers inherent in the use of marijuana do not turn on whether or not the use is sanctioned by the State. Merely because the [father] is entitled to use marijuana to improve his medical condition…does not mean that such use is not detrimental to his young daughters…Just because [the father’s] use of marijuana was legally prescribed does not mean that he is entitled as a matter of right to unsupervised visits with his children.”

Here, where medical marijuana use was legalized years prior to this case, the seemingly bright line of legality of the substance was overshadowed by the broader understanding of how the father’s marijuana use impacted his behavior around his children. In the court’s eyes, it isn’t “legal” to place your child in a detrimental environment either- and courts are VERY protective.


But what if I keep my marijuana usage away from my children?

One distinction that may come to mind is: “but I don’t use it around my children”. This, again, is a slippery slope. When diving into a possibly heated battle over your little ones, prepare to be exposed. When at risk of losing time with your child, the other parent has the opportunity to paint you as the “bad” parent, simply by addressing your casual, although legal, marijuana usage. Limiting your use of the substance does not limit the other party’s ability to use it against you. So why give them that opportunity?

Regardless of the laws, statutes, and cases that have expanded on this overlap between child custody and legal drug use, the stigma associated with marijuana use has not been eliminated. The fact of the matter is, judges and commissioners are human too, and they are not immune to stigmas and biases. You can often argue until you are blue in the face, but the underlying impression that your drug use may have on a judicial officer may never waiver.

Family law is unpredictable because people are unpredictable. This includes judges, commissioners, and parents, and it is often the most frustrating aspect of any family law case. Your future, as well as your child’s, is in the hands of a decider who may not know the details of your circumstances. Thus, taking control of your situation is one of the most overlooked strategies in a family law case. If you stop using marijuana, then this eliminates the ability for someone, whether that be the other parent, judge, or commissioner, to use it against you.

Quite frankly, when cost of litigating is an important issue, fighting an image of marijuana use is certainly more expensive (and frustrating) than moving forward with a clean slate. However, it is not in your best interest to lie to the court about your use. Your credibility is a tool YOU have and control, and it is invaluable.

Men already face an uphill battle when it comes to winning primary, and sometimes even partial, custody of their children. If you know your marijuana use could possibly be used against you, and you know this is an aspect of your case that you have control of, then: DON’T USE IT. Don’t create more problems for yourself if you’re trying to get custody of your children.  You’ll be much better off if you don’t use marijuana in a contentious custody case.



Marijuana Usage as a Weapon Article Written by Attorney Katrina Otto


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