Maryland Family Law Maryland family law opinions and commentary
“The question becomes, will cannabis still affect your custody case? Yes, the answer is absolutely yes, it can,” says Krystle Acevedo Howard, of Rodier Family Law in Bel Air. “What people need to know is that the best interests of the child is still the basis of determining custody.” (Submitted Photo)
Now that Maryland has legalized the recreational use of marijuana by adults, family law practitioners are grappling with what the change could mean for child custody cases.
Recreational marijuana, or cannabis, became available for purchase at Maryland dispensaries on July 1. People 21 and older are now able to possess 1.5 ounces of cannabis and to grow up to two cannabis plants at home.
But cannabis carries a stigma that did not vanish with legalization, and it remains a Schedule I drug under federal law, in the same league as heroin and cocaine. And while a recently adopted Maryland law forbids a parent’s cannabis use from being considered a form of child neglect, that use can nevertheless be taken into account by a judge when making custodial decisions — much as alcohol use can be considered.
“The question becomes, will cannabis still affect your custody case? Yes, the answer is absolutely yes, it can,” Krystle Acevedo Howard, of Rodier Family Law in Bel Air, said in an interview. “What people need to know is that the best interests of the child is still the basis of determining custody.”
Acevedo Howard and Erin Kopelman, of Lerch, Early & Brewer in Bethesda, led a presentation about the potential implications of legal cannabis use in child custody cases during the MSBA’s Legal Excellence Week this month.
A learning curve
In an interview, the two attorneys said the courts, like family law practitioners, face a learning curve about cannabis.
“I think there are going to be a lot of questions,” Kopelman said. “In general, how does it affect your brain? What are the effects of secondhand smoke on children?”
“I think there are going to be a lot of questions,” says Erin Kopelman, of Lerch, Early & Brewer in Bethesda. “In general, how does it affect your brain? What are the effects of secondhand smoke on children?” (Submitted Photo)
Kopelman also noted that the Diagnostic and Statistical Manual of Mental Disorders, which is used by mental health professionals, includes cannabis use disorder, described as “a problematic pattern of cannabis use leading to clinically significant impairment or distress.”
Acevedo Howard said the courts are likely to ask how long a parent has been using cannabis, even if it’s consumed for medical reasons. Maryland’s medical cannabis program began operating in late 2017.
Other questions from the court could include “were you using it illegally prior to getting a medical marijuana card, and if you were using it at a young age, how has that affected you over time?” Acevedo Howard said. “I think that even with medicinal, there’s still education that needs to be had with attorneys and judges. There’s a lot to still learn with this new law.”
Guide for family lawyers
Kopelman and Acevedo Howard stressed that family lawyers need to understand not just cannabis but their clients’ cannabis use. To that end, they have created a guide with questions for clients and tips for responsible cannabis consumption.
Among the questions for clients: How many hours are you stoned on a typical day? Are you being treated for any mental illness, including substance use disorder? Do you have any past violations related to substance use or possession? Tips include not consuming cannabis in front of children, keeping cannabis and paraphernalia under lock and key, not smoking indoors and never driving under the influence. Kopelman and Acevedo Howard also advised parents to create a “shared narrative” to discuss cannabis use with their children.
Dr. Alexander Dix, a licensed pharmacist and the clinical director of the Kip cannabis dispensary in Cockeysville, agreed that parents needed a shared narrative and recommended that they not hide
“It should not be something that’s hidden away and like, ‘Oh, gosh, I’m busted by my kid if they see me smoking out the window,’ says Dr. Alexander Dix, a licensed pharmacist and the clinical director of the Kip cannabis dispensary in Cockeysville. (Submitted Photo)
their cannabis use from their children but seek instead to destigmatize it.
“It should not be something that’s hidden away and like, ‘Oh, gosh, I’m busted by my kid if they see me smoking out the window,’” he said in an interview.
Dix, who took part in the MSBA presentation, advised parents to use cannabis as medicine, with attention paid to dosage and timing.
“If parents are able to use their cannabis in an intentional way and medicinally, I’ve actually seen it improve many people’s lives so that they could be better parents,” he said.
Petitions for contempt
Kopelman and Acevedo Howard said family lawyers and judges may confront petitions for contempt from parents when a former spouse or partner is found to be consuming cannabis, despite a previously signed marital settlement agreement or parenting plan stipulating they would not use illegal substances.
“I think that that’s something practitioners are going to want to consider,” Acevedo Howard said. “Would this person actually be held in contempt (now that cannabis) is no longer illegal? I think that really is going to depend on the Judiciary and how they decide to handle those issues.”
