Medical Marijuana and Child Custody
by Chris Meuse
If Texas legalizes marijuana, courts and family law practitioners should not presume parents are negligent or endangering their child if they are consuming marijuana as authorized.
Should parents’ rights to their children be impacted because they use medical marijuana or are employed in its testing and distribution? These are questions the Texas Legislature is currently grappling with in two recently proposed bills aimed at legalizing the use of medical marijuana in certain circumstances.
Texas is in the minority when it comes to legalized marijuana. In 1996, California was the first state to allow the use of cannabis for medical purposes. Now, nearly 70% of Americans live in a state or district where medical marijuana is legal, with 34 states authorizing its use (as well as the District of Columbia, Guam, Puerto Rico, and US Virgin Islands). And over a dozen states and territories approved adult-use cannabis for recreational use.
While Texas remains in the minority, public opinion and pending legislation are trending toward legalization. An Emerson College poll released in April 2019 asked Texas residents which of the following marijuana policies they favor: full legalization, medical use only, keeping it illegal or decriminalizing marijuana. Thirty-eight percent of those polled favored full legalization. Thirty-five percent supported medical use only, and only 14% said marijuana should remain illegal in Texas.
On May 6, 2019, the popular support for medical cannabis was reflected in the Texas State House’s passage of House Bill 1365 (121-23), which seeks to expand Texas’ 2015 Compassionate Use Act. The CUA allows for the prescription of cannabis that contains high levels of CBD (cannabidiol, a nonintoxicating/nonpsychoactive element) and low levels of THC (tetrahydrocannabinol, the psychoactive ingredient in marijuana). However, cannabis use under the CUA is limited only for permanent, Texas residents with intractable epilepsy. (The Texas Senate is also considering Senate Bill 90, which similarly seeks to expand the CUA. It is under review by Health and Human Services Committee.)
HB 1365 would expand the list of ailments medical marijuana could be prescribed to cover those suffering from “debilitating medical conditions,” as defined by the bill. Debilitating medical conditions, under HB 1365, would include over a dozen identified diagnoses, such as: cancer, glaucoma, HIV/AIDS, Crohn’s disease, post-traumatic stress disorder, autism, sickle cell anemia, Parkinson’s disease, and muscular dystrophy. More broadly, HB 1365 would allow a prescription for medical conditions that produce cachexia (wasting syndrome), severe pain, severe nausea, seizures, severe and persistent muscle spasms, or any other medical condition approved as a “debilitating medical condition.” This widened definition of “debilitating medical condition” would expand patient eligibility and access to medical marijuana, if the bill is eventually passed into law.
With greater access and use of marijuana, patients receiving cannabis treatment may be faced with overcoming the stigma of marijuana use, particularly in the realm of child custody. Use and abuse of prescription drugs, controlled substances, and alcohol are regular issues in Texas family law cases, especially those involving children. But if medical marijuana is legalized, how will such authorized use impact the rights of a party to a family lawsuit who may be consuming marijuana for medical purposes? Should it?
The Texas Legislature sought to address such impact in HB 1365. The bill amends provisions to the Health and Safety Code and Texas Family Code by categorizing patients for whom medical cannabis use is recommended and those employed in the distribution and testing of medical cannabis as “protected from legal action.” This protected status, in the context of a custody suit, includes the following:
- a person may not be presumed to have engaged in conduct constituting child abuse, neglect, or endangerment solely because the person engaged in conduct involving medical cannabis use that is authorized;
- the fact that a person is involved in authorized medical marijuana use does not in itself constitute grounds for denying, limiting, or restricting conservatorship or possession of or access to a child;
- a court may not terminate a parent-child relationship based on evidence that the parent provided or administered medical cannabis to a child for whom the medical cannabis was prescribed; and
- Department of Family and Protective Services may not take possession of a child based on evidence that the parent administered medical cannabis to a child.
These statutory protections are included so the consumption of marijuana alone, even if authorized, cannot be presumptively used against a parent to show neglect or child harm. And while conclusive evidence exists that marijuana is less harmful than alcohol or many prescription medications, parents prescribed medical cannabis, shielded by the amendments above, should still be diligent in protecting their children from exposure and access to medical marijuana.
As with any mind/body-altering substance, precautions should be taken when medicating and caring for a child. This would include storing medical cannabis in a place that a child cannot access; clearly labeling medical cannabis; using only as prescribed and with discretion when the child is present and engaged; having age-appropriate discussions about the parent’s cannabis prescription; and never driving with the child when medicated. If a parent were to endanger a child by not being so diligent, just as with any other prescription drug, parental rights and access could be compromised.
While HB 1365 is not Texas law yet, support for the bill shows that Texas is moving toward joining the 30+ other states that allow medical marijuana in some form. If Texas legalizes, courts and family law practitioners should not presume parents are negligent or endangering their child if they are consuming marijuana as authorized. However, parents must be aware that just because marijuana may be legal, how and when you consume can place a child and parent’s rights at risk.