In October, 2014, with an unprecedented 13-3 vote, the City of Philadelphia passed a bill to decriminalize the possession of marijuana, dismantling the current mandatory custodial arrests for marijuana possession in favor of simple fines for low scale use and possession amounts. But what effect will Philadelphia’s decriminalization bill have on custody cases in family court?
The standard in custody cases in Pennsylvania, pursuant to the Pennsylvania Custody Statute, 23 Pa. C.S. Section 5328, is to determine the best interests of the child by considering all relevant factors, “giving weighted consideration to those factors which affect the safety of the child.” Will decriminalization impact a caregivers ability to care for children? In some states, family court’s are leaning toward handling the decriminalization of marijuana similar to the way they treat alcohol consumption. Just like with alcohol, marijuana users need to consider whether their use and/or possession of marijuana will impact the safety and welfare of a child or children or in some way create instability for a child in the home.
Irrespective of state legislature, stripping parents of custodial rights even in states that have legalized marijuana for medical and recreational use is not uncommon. To the extent a legal guardian uses or abuses marijuana during their custodial time, places risk and jeopardizes his/her custodial rights regardless of decriminalization. Family courts continue to struggle with marijuana use in custody cases, often finding reason to criticize it. For now, it is a case by case basis, dependant upon the facts of each case and the assigned judge.