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33 U. La Verne L. Rev. 357 (2011-2012)
The High Price of Parenting High: Medical Marijuana and Its Effects on Child Custody Matters

handle is hein.journals/jjuvl33 and id is 369 raw text is: THE HIGH PRICE OF PARENTING HIGH: MEDICAL MARIJUANA AND ITS EFFECTS ON CHILD CUSTODY MATTERS DAVID MALLEIS* ABSTRACT Over the past fifteen years, seventeen states and the District of Columbia have recognized the medical potential of marijuana by passing state laws allowing qualified patients to legally use it to treat their illnesses. These medical marijuana laws protect qualified patients from criminal prosecution. However, legal uncertainty exists as to what effect a parent's medical use of marijuana will have in civil child custody disputes. Judges have used legal parental marijuana use, in and of itself, as probative negative evidence when deciding child custody matters. This Comment argues that when courts base child custody decisions solely on a parent's status as a medical marijuana-user, they force an untenable choice upon the parent between continuing a legally approved course of medical treatment and retaining custody of his or her children. This forced choice is contrary to the protections voters intended to provide when these medical marijuana laws were passed. This Comment proposes that states permitting medical marijuana use should adopt a conduct-based standard that focuses on the parental actions which create an unreasonable risk of harm to children when deciding child custody matters. By focusing on parental conduct, rather than a parent's medical marijuana-using status, courts can ensure that children are fully * J.D. candidate, 2013, University of La Vernc College of Law; B.A. (Music Performance), 2001, University of Arizona, cum laude. I would like to thank Professors Jane Egly, and Diane Klein for their guidance and help which contributed to the content and quality of this comment. I would especially like to thank my wife Petra, and my children, Joseph, Abigail, and Ana, for their constant love, support and inspiration. 357

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