'Hey Mommy, Pass the Bong!' How MI's Medical Marijuana Law Gives 'Extra Protection' to Parental Custody & Parenting Time Rights

Parents, have you been to "Doobies R Us" with your kids lately? I didn't think so. Now that Michigan has had the "Medical Marihuana Act" in effect since Dec. 1 of 2008, many figured it would have been just a matter of time before you could shop at your local strip mall for groceries, toys, pet supplies, and–pot! Thankfully, the law (and you can read the entire lengthy law here: http://www.legislature.mi.gov/(S(jpwqeg55dwqb4k45321jjf45))/mileg.aspx?page=getobject&objectname=mcl-333-26421) has been challenged in many areas, and some of its provisions are still subject to interpretation and enforcement by the courts.

But usage of Michigan's Medical Marihuana law–like the plants themselves–is growing and spreading. The law, which is "MCL 333.26424," details all sorts of specifics for those who want to grow, sell, or use medical marijuana.

One part that has particularly been of interest to many persons who would otherwise not care about the details of the law, but which comes up from time to time within the larger issues of Child Custody and Parenting Time, and which affects Family Law issues in Michigan, is Section 4(c), which states: "A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated."

What exactly does this mean? In the context of family law, this line in the Medical Marihuana Act clearly provides what amounts to "extra," or special protection, to persons who are growers/providers/users of medical marijuana. The statute's language is apparently lenient on the person using or growing medical marijuana, and is stringent as far as the amount of proof that the other parent has to provide to show the minor child is likely to be harmed.

There is nothing in the law that prohibits children from being around a "stash" of weed or pot plants either, which is a bit unnerving when you consider all the other safety precautions we readily install in our homes to protect children such as cabinet locks and safety knobs for doors, baby gates and socket covers.

What precisely would be considered an "unreasonable danger" under the law? The answer apparently rests on a case-by-case basis. However, just because something is "legal" doesn't mean it's a good idea to be engaging in that activity–and caregivers, parents, etc. who are also utilizing the Medical Marihuana Act's provisions had best be careful not to cross a line in which the courts would find their activities exceed what is "reasonable" conduct around children.

For example, a qualifying patient cannot possess more than 2.5 ounces of marijuana, and a "caregiver," aka person who grows the marijuana, can have up to 12 plants per person that he supplies. So, if a parent followed these guidelines, and he/she had a valid registry identification card, not only could the the police not arrest him/her but the courts would have to presume the drugs are being used for medicinal purposes. Any challenge to the parent's Custody or Parenting Time would likely be snuffed out and defeated.

However, if the parent had a pool table-size greenhouse growing, with overhead lamps and humidifiers, growing dozens of plants, then it's more of a danger. If a mother or father doesn't follow the Act's guidelines, doesn't have a card, and is just growing weed to enjoy life a little more, then it's more likely that parent is simply a drug dealer/user and you can attempt to use this information against him or her in court with respect to Parenting Time or Custody. The specifics of the "growing room" example can be a factor to consider, too, as the law does require the plants to be kept in an "enclosed, locked facility." (Common sense would say you should lock them up if it's your livelihood–and to be careful, as with firearms.)

MCL 333.26427 sets forth many other things you can't do while using marijuana, and where you can and can't possess and smoke it. But absent an arrest or an admission by the parent, it won't be easy to disturb someone's custody or parenting time rights if they smoke or grow marijuana within the guidelines–even if the guidelines are regularly and routinely crossed somewhat by that parent.

Obviously some people are going to hide behind MI's "Dr. Dope" law to legally continue their abuse of marijuana without fear of repercussions in regard to their Parenting Time or Custody. Clearly exposing your children to this type of activity can have dire moral consequences. And while there are also legitimate uses for this drug and for some people this is the last option to alleviate their pain and illness, it's ironic that we expend resources and effort on educating our young children about drug abuse in schools (through programs like D.A.R.E., Drug Education Resistance Education, for example) and yet have the loophole of "medicinal Mary Jane" when they come home to their parents.

For the time-being, litigation in family law court surrounding the Medical Marijuana Act is sure to rise–in particular, what is unreasonable (or even dangerous) in the context and presence of minor children will be debated and argued about. At some point some kids' moms and dads may even get burned by their usage of legal reefer.

And if they're not careful in adhering to the statute (and state guidelines) they may see their chances of keeping or sharing Custody or Parenting Time go up in a "cloud of smoke."

(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in divorce, criminal defense, civil rights, and personal injury cases, as well as juvenile, Probate, real estate and business litigation.)