Can Marijuana Use Impact What Happens With Your Children in a Divorce?


Medical marijuana was signed into law in the State of New Jersey in 2010. If you follow the local news, it appears that recreational cannabis will be available within the next few months. Meanwhile, you may wonder what all this means to you if you’re going through a divorce.  Even if you’re using it legally, could smoking pot have any impact on what happens with your children during a divorce?

For years, it has been somewhat of a no-brainer. After all, weed has been illegal for a very long time. No doubt the best interests of your child means making sure there is no risk that law enforcement officials could come knocking on your door.

There are two important considerations when it comes to cannabis. Will it affect the court’s decision in awarding child custody? What about parenting time?  It might seem ludicrous to you – but your spouse might actually request supervised visitation because you find relief in puffing on a joint every now and then.

Some think that marijuana use represents child endangerment. NJSA 2C:24-4 is the criminal statute that deals with endangering the welfare of children. It says nothing specific about parents who use cannabis products. At best, it imposes a legal duty on those who have “assumed responsibility for the care of a child” to ensure they are not causing harm “that would make the child an abused or neglected child.”

That said, could marijuana use cause harm that results in child abuse or child neglect? All things considered, the answer to that question may be critical when it comes to determining custody and parenting time.

Marijuana, Custody and Parenting Time

To some, marijuana use is no different than alcohol. Both can have intoxicating effects and lead to potentially adverse behavior on the part of the parent. Those who smoke pot often argue that the worst that happens to them is that they become overly mellow. That’s not to say that they should be strapping their children in a car seat after they’ve just used cannabis. After all, it is still a mood or mind-altering substance.

In determining child custody, the courts look into many factors, including the fitness of the parents. In fact, NJSA 9:2-4 (c) puts parameters on measuring how fitness applies to custody. It says that “A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.”  Could smoking pot create such an environment?

There are other considerations. Without question, it would make sense for parents to refrain from using cannabis in front of their children. Of course, asking a minor child to partake represents an even bigger problem. However, the biggest issue is whether even privately smoking weed could cause an adverse effect when it comes to the child’s well-being from all standpoints.

How Another State Dealt with the Issue

When it comes down to it, substance abuse may be the real problem. Approximately ten years ago, a Washington court ruled against a father who claimed to legally use marijuana for medicinal purposes. In re Wieldraayer involved a custody dispute over a child of tender years.

The four-year-old child’s mother contended that the father allowed his daughter to “sniff the glass while he was smoking marijuana.” In short, just because the dad was using cannabis legally – did not mean he was not putting his child in a detrimental situation.  The court determined that supervised visits were warranted – even though it did set a timetable when they could become unsupervised.

Contact Us

Is marijuana a subject that could impact your custody or parenting time? Contact the Law Offices of Sam Stoia to discuss your concerns. As recreational marijuana becomes a way of the future in New Jersey, this may become a more critical issue. Contact us to set up a meeting.