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Bergen Bar Family Law Bulletin – Cannabis, Custody & Parenting Time

By Bruce E. Chase, Esq.,                                                                                                                                                    Co-Chair, Family Law Committee

All of us have had to provide our medical history to our doctors.  Amongst the questions, “Do you smoke?  Do you drink?  If so, how much/how often?  What do you drink?”  Next comes the question that leads to this short article, “Do you use recreational drugs/substances?”  Should this same question now become an essential part of our divorce, custody and parenting time initial consultation?

As you will soon come to know, the answer is a resounding YES!

I call your attention to the recent case of New Jersey Div. of Child Prot. & Permanency v.   D.H., et. al., recently reported in the August 19, 2021 edition of New Jersey Law Journal.  In this case, the Parents were the parents of a five-year old child.  The Parents “admitted to using marijuana on multiple occasions while actively watching their son.”

In the D.H. case, the parents’ parental rights were terminated for several reasons, amongst which was their admission that they smoked marijuana “regularly” while caring for their child.  The parties appealed that termination of rights and argued that in light of recent legislation, both in New Jersey and other states, legalizing recreational use of marijuana, the trial court had over-focused upon their use.

The Appellate Division “acknowledged that a parent’s recreational use of marijuana, by itself, could not support a termination of parental rights.”  Therefore, it held that DCPP also had to present sufficient proof that the recreational use endangered the health, safety, and welfare of the parent’s child.  Proof of actual harm however was not required.  The Court reasoned that the Court need not wait for irreparable harm to occur.  Rather, “competent evidence of prospective risks of harm could suffice to support involuntarily terminating parental rights.”

What “competent evidence of prospective risks of harm” did DCPP present in this case?  It presented an “expert” who testified about the “risks of a parent using marijuana while caring for the child.”  While the case report does not reveal the field of this witness’s expertise nor the details of any learned treatises or scientific support for their opinion, this expert opinion was “unrebutted.”

The Court deferred to the trial court’s factual findings and credibility determinations, including those “regarding father’s addiction issues, mother’s mental health and substance abuse issues, and defendant’s failure to fully comply with offered services.”  It therefore affirmed the trial court’s decision to terminate both parents’ parental rights finding that there was sufficient evidence “to find that each of the four statutory prongs for involuntary termination of defendants’ parental rights” had been proven.

My take away from this?  We must ask the questions about recreational drug use during the initial consultation.  But whether the answer is “yes” or “no”, I would seriously consider warning the client or prospective client that their use of any licit or illicit substance, including alcohol and prescription medications, whether purchased legally or not, either during or within some arbitrary period of time prior to having custody or parenting time, may result in an emergent, and perhaps permanent, termination of that individual’s custody and/or parenting time rights.  FAIR WARNING!

ARTICLE XXII

(Proposed)

The Parties agree that neither they nor their social guests shall partake or consume in any manner, including ingesting, inhaling, smoking or other means of introduction into their body’s systems, any alcohol or recreational drugs, including cannabis, during such time that they alone are responsible for the care and supervision of the Child/Children.  Each Party also agrees that they shall not, both during such time that they alone are responsible for the care and supervision of the Child/Children, but also __ hours before such time, partake or consume, in any manner, including ingesting, inhaling, smoking or other means of introduction into their body’s systems, any alcohol or recreational drugs, including cannabis.  Neither parent nor their social guests shall partake of any recreational or illicit substances in the presence of the Child/Children.

 

Bruce has been a Certified Matrimonial Attorney since 2010.  Bruce is a Fellow of the American Academy of Matrimonial Attorneys, having served as its President in 2015-2016.  Bruce is trained as a Family Law Arbitrator by the AAML.