Recently a colleague mentioned that she was heading to a hearing on child custody and wanted to discredit the Defendant by asking him to admit he was a medical marijuana user under Michigan Medical Marihuana Act (MMMA). She felt that this would be a good argument to show why the Defendant shouldn't have parenting time with her client's children. My first reaction was to explain to her that under Michigan's medical Marihuana Act the Defendant had an affirmative defense to her argument. Specifically the act states: "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." (MCL 333.26424(c) (Emphasis added)
Initially my impression was that the MMMA would protect this type of intrusion of an individual's status as a medical marijuana patient. However, further research shows that this area of law is an intensely fact-specific issue that has many possible outcomes. Specifically, there are two ways to change a court's prior custody or parenting time orders. The first is to show "proper cause". Proper cause means that the grounds for the change must be relevant to at least one of the best interest factors (there are 12 factors) considered in custody disputes by the Judge. The second option is to show a "change in circumstances". The change in circumstances must show that since the entry of the last order the conditions surrounding the custody of the child, which have a significant effect on the child have changed.
Does the "unreasonable danger to the minor child" language in the MMMA take this issue out of the realm of the best interest analysis of a Judge? Can the Judge consider the use of medical marijuana in deciding a custody or parenting time dispute? The answer is: quite possibly. It should be noted that no detailed options have been released by the Michigan Court of Appeals or the Michigan Supreme Court on this issue relating to the MMMA. However, there are basic guidelines that anyone who is a MMMA patient or caregiver should follow to maintain the least amount of disturbance in the event they are faced with a custody or parenting time dispute. First, don't smoke in front of your child. Not only is refraining from exposing your child to marijuana smoke smart, but it will also prevent that from being used against you in court, which would undoubtedly hurt your case. Second, keep your marijuana in a safe or child-proof location. Make sure you are the only person who has access to any marijuana in your house. And finally, don't do anything negligent with marijuana in your system. Although this area of the MMMA is unclear, in a custody or parenting time dispute the parameters are wide open for discussion.
If you or someone you know is facing an issue involving medical marijuana, call the experienced attorney's at Marrs & Terry for a free consultation to defend your rights.