Will Your Pot Smoking Habit Impact Custody Arrangements? Not Necessarily.

Posted by Joseph D. Lento | Sep 30, 2021 | 0 Comments

On February 22, 2021, New Jersey became the 14th state to decriminalize marijuana for recreational use. Though this new law alleviated concerns about the consequences of marijuana use on a criminal level, parents were left questioning how the law might affect their custody arrangements if they decided to indulge. On August 2, 2021, the State finally clarified its position on this issue in the case of the New Jersey Division of Child Protection and Permanency v. D.H.

Pot Smoking and Custody Clarified

In the aforementioned case, a father became the primary parent after the court disqualified the child's mother from primary parenting due to her substance abuse and mental health issues. In becoming the primary parent, the father committed to supervising the mother's contact with the child.

The court later lost confidence in the father's commitment after he tested positive for marijuana and admitted to smoking pot with the mother while caring for the child. The father also resisted drug testing and treatment, had no plan for the child's care without the mother, and failed to appear at court-ordered assessments. Based on these facts and the mother's ongoing substance abuse and mental health issues, the trial court terminated the rights of both parents.

On appeal, the parents argued that the court's termination order was improper due to the legalization of recreational marijuana in New Jersey. In upholding the trial court's decision, the Appellate Division agreed that marijuana use alone could not support a termination of parental rights. However, in this case, several other factors were present that put the child's safety at risk and merited a termination of parental rights.

Legal Standard for Pot Smoking and Child Custody

In New Jersey, parental rights are fundamental rights, but they are not absolute. The court must balance those rights with its public policy interest in a child's welfare. The court does this by making custody decisions in line with a legal standard known as the child's best interest.

Under the child's best interest standard, the State can temporarily or permanently remove a child from their parental home if:

  • The child's welfare has been or will continue to be endangered by the parental relationship
  • The parent is unwilling or unable to provide a safe and stable home
  • The State has made reasonable efforts to provide services to help the parent correct unstable circumstances, and the court has considered alternatives to termination
  • Termination will not do more harm than good

When it comes to marijuana, a parent doesn't jeopardize their fundamental right to parent by recreational use alone. The court will only find that the child's best interest eclipses a parent's fundamental rights if the parent's marijuana use endangers the child's health, safety, and welfare. If the parent's use doesn't jeopardize the child's best interest, their parental rights remain intact.

How the Lento Law Firm Can Help With Your Custody Matter

Are you dealing with a unique custody issue and need expert legal advice?

The Lento Law Firm can help. Attorney Joseph D. Lento cares passionately about children and their parents. He will work tirelessly to protect your fundamental parental rights and ensure your child remains healthy and safe. Call 888-535-3686 to schedule a private and confidential consultation in your custody case today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in New Jersey and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings! He does not settle for the easiest outcome, and instead prioritizes his clients' needs and protects their interests.


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