OP-ED by Attorney Jeff J. Horn
My law school Professor, H. Geoffrey Moulton, Jr., served as a law clerk for US Supreme Court Justice William Rehnquist. Among the topics we discussed in my criminal law class was the Supreme Court settling on the spelling of the word marijuana. It turns out that there was some debate on using the letter “h” instead of “j” among the Supreme Court Justices. It never occurred to me then that legalization would be on the table 25 years later Now, New Jersey and other states are legalizing marijuana and spelling the word with the letter “j”.
In family law, parental fitness is often challenged on the grounds that one parent, caretaker, or guardian of the children utilizes marijuana. Perhaps there is a history of marijuana usage – arrests for possession or distribution – or, maybe a parent is a highly functioning member of society but a daily marijuana user.
Historically speaking, if I appeared in court with a client accused of marijuana use and that client tested positive for THC through urinalysis or a hair follicle test, the knee-jerk reaction of the court would be to pause that person’s parenting. That client / parent would potentially be subject to random drug screenings and a pledge to not utilize marijuana or other illegal drugs. The violation of that pledge, or a so-called failed drug test, would set that parent back.
The legislation moving through the New Jersey lawmaking process refers to “legalizing marijuana like alcohol for adults.” If a parent stands before the court and tells the judge truthfully that he or she drinks two glasses of wine or four beers every single night and has been doing so throughout their tenure as a parent, the court is likely to not even bat an eye. Contrast that with a parent who stands before the court and truthfully states that he or she smokes marijuana joints every single day. The court’s immediate reaction is much different.
Now, our political leaders – our most thoughtful civic citizens – have declared that marijuana is the equivalent of alcohol, and that it should be controlled, regulated, and taxed. Prohibition never works. The wrong people continue to make money, and our most dispossessed citizens get locked up.
Where does that leave the family court judge presented with an argument that the other parent is a druggie, and he or she smokes marijuana every day. I would argue that this accusation has lost its power and grip over the question of what parental fitness is. Historically, society has looked at marijuana users as people on the wrong side of the law that are headed for lives fraught with trouble, and lives that inevitably lead to addiction to even more dangerous drugs. Marijuana was always called a gateway drug.
Merely utilizing marijuana will no longer be evidence of a lack of parental fitness. There must be more, perhaps much more. The parent arguing against custody and parenting time for the marijuana user will need to make a stronger case. They will have to closely tie the marijuana use to lousy behavior which impacts the children. If marijuana use and bad parenting are not tied together, the marijuana usage issue should hold a very diminished position in the analysis of the best interest of the children.
Renowned addition expert, Dr. Gabor Maté, looks at addiction in reverse asking why we punish people in pain? If people utilize marijuana or alcohol to manage pain or trauma in their life, does that translate to bad parenting? Should we take children away from parents that have pain, trauma, and obstacles in their life? Resting decisions on charges of marijuana use and failed drug tests has always been an easy tripwire.
Marijuana users are bad parents.
That argument is dead.