Does the legalization of recreational marijuana affect my child custody orders? My co-parent gets high sometimes.

When the clock strikes midnight in California this new year, hundreds of new laws will go into effect. A big one for 2018 is the legalization of recreational marijuana use. If you have a custody order, you might be wondering how the new law will (or won’t) affect it.

Generally, Proposition 64 allows adults to buy, sell, and consume marijuana for recreational purposes. Each county individually has had a little over a year to implement local regulations. Those rules probably won’t affect you (or your custody order at least) as much as the legalization itself.

does marijuana use affect your ability to parent your kids?

One important thing to remember, as with anything new, is that it’s impossible to know for sure how judges and courts will treat it. But California has had a leg up, because medicinal marijuana has been legal here for quite some time. So your custody orders may already include a rule for marijuana use. If they don’t, the bottom line is: does marijuana use affect your ability to parent your kids?

If you DON’T have a previous custody order, you might be concerned about how a mediator or a child custody recommending counselor will treat it. In all likelihood, marijuana will be treated as alcohol. If you have a prohibition on all mind-altering substances, you should steer clear, even though it’s legal. If you have a prohibition on substances during parenting time, you should steer clear during and 12 hours before.

The overarching theme when considering marijuana use and your custody arrangement is remembering the purpose of custody orders themselves: the best interest of the child. Ask yourself: is it in the best interest of your kids? Talk to your co-parent and make decisions about marijuana use together. And if you need help with a custody plan in light of the new 2018 laws, seek legal advice or talk to a mediator.

I conducted an informal survey of local CCRC’s and judges, who mostly indicated they will treat marijuana like alcohol moving forward. It is likely that situations like these are a thing of the past:



ABOUT THE AUTHOR: KEELEY L. NICKELSON is an attorney with FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. She can be reached at or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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