How Pennsylvania Courts View Medical Marijuana in Custody Cases

By Sheryl Rentz on December 17, 2020

As public views of marijuana shift across the United States, over the past decade several states have voted to decriminalize marijuana, legalize it for medicinal purposes, or allow recreational use. Here in Pennsylvania, since 2016, doctors have been able to prescribe medical marijuana cards to patients to allow them to purchase small amounts to help with chronic pain and other conditions, but anyone can still be charged with criminal penalties for possession or use. This blend of legalization and criminalization can complicate matters, especially when it comes to a family law dispute, especially involving child custody and visitation.

Pennsylvania’s Stance on Medical Marijuana

Prior to 2016, anyone in Pennsylvania could be charged with a misdemeanor or felony for possession of marijuana. However, with the passage of Senate Bill 3, Pennsylvania residents can purchase marijuana from a dispensary if they have a specific medical condition, were diagnosed by a medical professional, and were prescribed a medical marijuana ID card. These conditions range from cancer to anxiety to multiple sclerosis. So long as a patient fulfills all of these requirements, he or she may legally purchase and use marijuana. However, while these patients cannot be charged with a crime, they may face some difficulties in civil court.

Are Medical Conditions Evaluated in Child Custody Cases?

In any family law case in Pennsylvania, the primary focus is the best interests of the child. When a judge reviews a case to decide on custody or visitation, she will need to use all available evidence and testimony to determine the best scenario and living conditions for a child. This can range from reviewing each parent’s living situations to their criminal records to where the child has grown up and is going to school. But another element that a judge can consider is a parent’s medical condition.

Traditionally, courts will only focus on mental health issues when deciding custody if those issues could impact the well-being of a child. For example, the court may request a psychological evaluation if a parent demonstrates signs of abuse or neglect, even if related to a mental health condition like depression. They can also review a parent’s physical conditions, such as a disability or serious illness, if it could impact his or her ability to raise a child. While a parent is unlikely to be denied custody solely on the basis of a disability or mental illness, the court may grant limited custody or visitation depending on the circumstances.

This can also become an issue when it comes to medical marijuana. While some parents assume that the courts will not care if they use medical marijuana to treat an illness or injury, that is actually not the case. In 2019, the Superior Court of Pennsylvania dealt with this very debate in the case of H.R. and C.A.R. v. C.P. and J.M. In this case, a father attempted to receive joint custody from the court, however, he was only granted supervised visitation due to his use of marijuana. In an appeal, he argued that he used it in accordance with Pennsylvania’s medical marijuana laws to treat alleged wrist pain.

This case eventually reached the Superior Court of Pennsylvania, which dismissed the father’s argument, but not simply because of marijuana use. Both parents had had an issue with substance abuse, and the courts could not determine if the father’s use of marijuana was solely for medical purposes. The court ultimately felt that it was in the child’s best interest to limit the father’s visitation time.

According to Pennsylvania Health and Safety Statute § 10231.2103, family law courts cannot use medical marijuana as the sole basis for determining custody or visitation. However, when you consider the above case, you see the courts can use it as one of several factors when evaluating what is best for a child.

These situations are judged on a case-by-case basis, which is why it is important to work with a skilled and experienced attorney. At the Law Offices of Sheryl R. Rentz, P.C., our Montgomery County family law attorney has more than 25 years of experience representing clients in a variety of child custody cases. She can review your situation to craft a strong argument on your behalf. If you need legal assistance requesting visitation or custody, contact our office at at (610) 645-0100.