Proposition 207, which gives Arizona residents the right to legally possess and consume marijuana, was passed into law in late 2020 with a 60% majority vote. More specifically, Arizona’s Prop 207, or the Smart and Safe Arizona Act (SSAA), permits recreational marijuana use and the possession of cannabis plants for residents of the state age 21 and older. It also gives adults the right to possess one ounce or less of marijuana on their person or up to six cannabis plants per person or two people in their home. Furthermore, adults may purchase recreational marijuana at dispensaries registered for the sale of such products.
Family court, judges, law enforcement officers, and other government bodies and officials are adjusting to the new laws that allow the recreational use of marijuana. For many, recent years have marked their first time addressing new issues regarding legal recreational marijuana consumption. For example, the question of whether child custody should be affected by a parent’s use of recreational marijuana has been a subject of debate, as the law does not specifically give guidance on the state’s opinion on this matter. Thus, it is left up to the judges and family court officials to make decisions on a case-by-case basis and establish a precedent for forthcoming child custody cases.
The Impact of Arizona Prop 207
The legalization of marijuana in Arizona for recreational use has changed the legal landscape in not only the criminal court but many areas of family law, as well. The list of regulatory laws that govern the use of the drug is long, and many laws overlap. As a result, it can be difficult to interpret the law precisely, and astute judgment must be used.
Of course, the area most affected by the legalization of recreational marijuana use is criminal law, especially regarding the former penalties and restrictions surrounding cannabis possession and use. Still, it is important to note that criminal law changes affect everyone, including parents. While there is a legal amount of marijuana a person can have in their possession, it is still a crime to possess more than that legal amount. In short, possession of significant amounts of marijuana can still result in serious charges.
What the Law Does Allow
Similar to the laws that regulate alcohol use, it is also illegal for anyone who is under the influence of marijuana to operate a vehicle, and the use of marijuana by anyone under the age of 21 is a crime. Additionally, employers still have a right to require employees to undergo drug screening in order to ensure they are operating a drug-and-alcohol-free workplace.
Furthermore, employees can be fired for using marijuana on the job. Even though it is legal to consume marijuana, neither recreational nor medical marijuana use is legal to use in public places. Specifically, Arizona law does not permit the use of marijuana near schools.
Arizona Child Custody Laws
Arizona family courts approach child custody with a single primary concern: the best interest of the child. In addition, AZ family court judges typically attempt to delegate parenting time so children have the opportunity to maintain a healthy relationship with both parents. Arizona courts do not tend to favor the mother over the father just because it’s the cultural norm. In general, the court begins every case with the assumption that both parents have a right to shared, joint custody, and this is the general consensus unless there is a valid reason that demonstrates otherwise.
Joint legal custody, known as shared decision-making rights, gives both parents responsibility for making important decisions regarding the child’s well-being. Joint physical custody, known as parenting time in Arizona, enables both parents to spend time parenting their children. When one parent has primary custody of a child, the child’s other parent will still typically receive some parenting time. However, although the Arizona family court’s base standard is joint custody, the interest of the child is always the primary concern.
Marijuana Use and AZ Child Custody
Because the child’s best interest is the court’s primary concern, if one parent has demonstrated behavior that could endanger a child, it can significantly impact the final outcome of a child custody case. Depending on the details of the parent in question’s criminal history, the severity of the crime, and proof of reformation, a law-breaking parent’s custody and/or visitation rights could be affected by incidents like DUI.
Parents who are concerned about this type of situation should understand that just because the law doesn’t speak specifically to recreational marijuana use and its implications for child custody cases, it doesn’t mean violations of these laws won’t have an effect on a judge’s decision on child custody.
Because situations involving child custody and a parent’s use of recreational or medical marijuana are still very few, there is no valid precedent yet, and the courts are still learning how to rule in these cases. One way judges have resolved this issue is to refer to precedent cases that involve alcohol use to determine the rights of parents who use marijuana. The common opinion in the Arizona family court implies that child custody should not be given to a parent who has a recent past of substance abuse. In other words, family law considers the care of a child by a parent with substance abuse problems not in a child’s best interest.
It is important to note that legal marijuana use does not indicate issues with substance abuse. But, it is ultimately the presiding judge’s instinct and best judgment regarding the situation that influences the final decisions made regarding child custody.
Legal Marijuana Use in AZ Is a New Frontier
While there are no specific laws concerning marijuana use and its implications on child custody, visitation, and the ability of someone to care for a child while they are under the influence of marijuana, there is some debate about whether a child’s non-smoking parent should be favored when considering custody. Frequently, courts rely on these types of expert opinions and studies to influence their decisions in matters of family law. Thus, they can have an impact on a child custody case.
For example, one claim asserts that family courts in the US have an obligation to protect the health of a child on the court’s own initiative, specifically regarding second-hand smoke and its potential health risks for children. Another study shows a correlation between substance use and child neglect. These and other influential studies, along with precedent cases and a judge’s experience, can influence the courts and how one judge views a case, which can be relatively different from another judge’s perspective. Consequently, every situation is different, and it is difficult to predict the outcome of a case before it is played out.
Evidence can also play an important role in custody cases. When the opposing side in a child custody case has significant proof that giving custodial rights to a parent who uses marijuana would affect the child’s best interest, it could be difficult to convince a judge otherwise. The best chance a parent in this situation has to obtain custody in any capacity is to have an experienced and knowledgeable lawyer representing them and defending their rights.
As more legal precedents are recorded, it’s important to remember the fact that the legalization of marijuana in Arizona is a new era with new legislation that has yet to be fully interpreted and applied in a general manner. Final decisions are subject to the presiding judge’s best wisdom and reasoning.
Incarceration of Marijuana Offenders and Child Custody
Another controversial issue regarding child custody and the recent legalization of marijuana use in Arizona is with incarcerated parents. Since the state has decriminalized certain marijuana violations in accordance with the legalization and regulation of marijuana possession and consumption, there are cases in which an incarcerated individual has lost parental rights while incarcerated for these charges. Some of these incarcerated individuals now have the opportunity to be expunged of their convictions related to marijuana use, and some of them are parents. The question is now posed as to whether or not these parents can get parental rights back.
As Arizona marijuana laws are new, precedent cases are still developing, and how this specific situation affects child custody is still undetermined. Every case remains as unique and, with extenuating circumstances, as novel as the facets of marijuana legalization and child custody.
What to Do if You’re a Marijuana-Using Parent in a Custody Dispute
If you’re a parent in this situation involved in a custody dispute, the best thing you can do is seek legal counsel. In the meantime, you should also refrain from posting anything on social media that could be used to influence a judge regarding your substance use and parenting abilities. Furthermore, it’s a good idea to refrain from consuming marijuana or other substances while your children are in your care or before having contact with your child, the child’s other parent, before the court, or in front of anyone who could potentially testify against you
Committing any kind of crime or being charged with any type of drug-related charges can be difficult to overcome in a child custody case. Therefore, amid court proceedings for custody, take extra care not to get into any trouble or get caught in the wrong place at the wrong time. Only purchase marijuana from a licensed dispensary and ensure you are adhering to all state regulations regarding possession.
Obeying the law, using marijuana responsibly, and acting as a responsible parent is the best way to avoid any problems with child custody. If you are in doubt about whether your behavior or activity will affect your right to custody and/or visitation with your child, you should seek legal counsel. The advice of an objective and legal-minded mentor can help clear up the confusion and apply a new perspective to your understanding of the law, how it applies to you, and how it may affect any pending family court hearings.
The Best Advice
The best advice for parents who consume marijuana is to understand that there is a slight chance that it may impact your right to child custody if used or represented improperly and to understand how it can impact your child custody case in Arizona family court. By fully comprehending your obligation to your responsibilities as a parent, you can fulfill them without risking your ability to be with and care for your child. Knowing how to act responsibly when it comes to marijuana consumption and then doing so is an important part of being a parent. These parental obligations are just as important as properly putting children in a car seat or protecting them from strangers.
In many cases, until there are more precedents, many judges apply the same laws and standards to marijuana consumption as they do to alcohol consumption. Therefore, this is a good way to gauge if behaviors are likely to be frowned upon in a child custody hearing. If you’re wondering if your marijuana use is questionable, compare the same behavior to a parent who is using alcohol. If it isn’t in alignment with legal and moral standards, it will likely not benefit you if divulged at a custody hearing.
Reach Out to The Valley Law Group
If you are a parent in this situation, the simplest way to evaluate your marijuana use, whether recreational or medical, and how it could affect your child custody case is to consult with a legal professional. The attorneys at The Valley Law Group are skilled in navigating these complex issues and helping you understand how the law applies to your situation. Speaking with an experienced lawyer from our legal team can make an enormous difference in the outcome of your case and, more importantly, the well-being of your child.
Contact us today to schedule a consultation.
- Arizona Courts. (n.d.). Proposition 207. Retrieved September 15, 2023, from https://www.azcourts.gov/prop207
- Arizona State Cannabis. (n.d.). Laws. Retrieved September 15, 2023, from https://arizonastatecannabis.org/laws
- Arizona Department of Revenue. (n.d.). Adult Use Marijuana. Retrieved September 15, 2023, from https://azdor.gov/business/transaction-privilege-tax/adult-use-marijuana
- Chinnock, W. F. (2003). No Smoking around Children: The Family Courts’ Mandatory Duty to Restrain Parents and Other Persons from Smoking around Children. Arizona Law Review, 45, 801.https://heinonline.org/HOL/LandingPage?handle=hein.journals/arz45&div=38&id=&page=
- Judicial Treatment of Parental Mental Health in Child Abuse and Neglect Case Law – ProQuest. (n.d.). Www.proquest.com. Retrieved September 16, 2023, from https://www.proquest.com/openview/2d3c977cb69f1cefc3cbf611e1fae234/1?pq-origsite=gscholar&cbl=18750&diss=y
- Prop 207. (n.d.). Www.azcourts.gov. https://www.azcourts.gov/prop207
Jonathan Roeder, Founder/Director of Marketing of The Valley Law Group, is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.