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Marijuana Use & Child Neglect

Impacts of Recreational Marijuana on Child Custody in New York

Recreational marijuana was recently legalized in New York on March 31st, 2021. Although the Empire State has long decriminalized simple marijuana possession, legalizing cannabis for recreational use is a significant step forward. Being the 16th state to legalize recreational marijuana, New York is following a path that many would argue is positive. However, a substantial amount of New Yorkers thinks otherwise.

To put it in perspective, common effects of THC, the chemical that produces the “high” feeling, include:

  • Relaxation
  • Heightened sensory perception
  • Laughter
  • Altered perception of time
  • Increased appetite
  • Difficulty thinking and problem-solving
  • Impaired memory

Some may argue these effects are good, while others would argue they are bad. So, what does this mean for co-parents in New York? Surely, if they can have a glass of wine around their children, they can smoke weed as well, right? Not quite.

Although weed is legal in New York, there are limits for co-parents who want to avoid custody issues at all costs. It’s not necessarily forbidden or “bad” to smoke pot around children when it’s legal, but co-parents should be mindful of the consequences their actions could have.

Just as you wouldn’t get blackout drunk when you have custody of your kids, you wouldn’t want to get so high that your ex-spouse or a mandated reporter have to report child neglect. If you think it’s impossible to get child neglect accusations for smoking pot, think again.

Studies show that parents with substance use problems are more likely to be physically abusive, commit child neglect, and have higher risk of child maltreatment than those without diagnosed substance use problems. Although we don’t know which specific drugs are likely to cause these behaviors because most research on child welfare populations does not differentiate between specific substances used.

Nevertheless, your ex-spouse may use your legal marijuana use against you in attempts to revoke your child custody rights. Keep in mind that mandated reporters (i.e., teacher, health care worker, or therapist) are required to report abuse and neglect.

What Is Considered Child Neglect in NY?

NY state child neglect laws state that a neglected child is one “whose physical, emotional, or mental condition has been impaired or is in imminent danger of becoming impaired” as a result of their parent or legal guardian’s “failure to exercise a minimum degree of care” in seeing to the child’s basic needs. This includes a parent’s failure to adequately supervise their child as a result of misusing drugs.

However, if a parent or legal guardian is “regularly participating” in a drug rehabilitation program, evidence of their drug misuse will not establish neglect without other elements involved.

As such, if a parent gets high on marijuana every day after work and fails to feed their child, help the child with homework, give them a bath, or otherwise fails to satisfy basic parental duties because of their marijuana use, they could be accused of child neglect. But even if a parent only smokes a little but of marijuana on weekends, they could lose custody if their actions result in neglect to their child.

NYC Administration for Children’s Services (ACS) Does Not Mess Around

The New York City Administration for Children’s Services (ACS) has a history of filing cases against parents who reportedly smoked marijuana. The case examples below, provided by the Family Law & Cannabis Alliance, specifically refer to reports of using cannabis while pregnant, but nonetheless, they demonstrate the willpower of the ACS:

Matter of Jones v. Jones: ACS petitioned the family court to declare mother’s children “neglected,” on the sole basis that the youngest child had tested positive for marijuana at birth, and that mother admitted to ingesting marijuana orally (in a tea or paste) once while pregnant. The baby was born healthy and full-term, and all of the children were observed by the ACS social worker to appear “neat, well-cared-for,” and “free from any marks or bruises.” The older children told the social worker that they had never seen their mother smoking marijuana.

The family court, after hearing expert testimony from neuroscientist Dr. Carl Hart, found that ACS had failed to prove that the children were in “actual or imminent danger” of physical, mental, or emotional impairment. ACS presented no evidence that the mother had a problem of serious and ongoing substance abuse which caused her to be negligent in caring for the children. Even if there were evidence of the mother’s substance abuse, ACS would also need to prove a connection between that substance abuse and the alleged harm or risk to the child(ren). This court refused to find the Jones children to be “neglected.”

In re William N., Jr., 2013 N.Y. Slip Op. 23181: Mother tested positive for marijuana at delivery, but William tested negative for all drugs and alcohol. Father was also alleged to misuse marijuana, though there was no evidence that he did so in front of the child. William was born healthy, but ACS nevertheless petitioned the family court to declare him “neglected” on the basis that mother admitted to smoking marijuana during her pregnancy, and that father had failed to prevent her from doing so. Because there was no evidence that William had been affected at all by mother’s marijuana use, or that her conduct placed him at risk of harm, the court refused to find William to be a neglected child. The ruling was based in part on the Jones case above.

Are You at Risk of Losing Custody?

As you can see from the information above, parents who smoke marijuana in New York must be cautious. Getting too high, smoking frequently, or failing to fulfill your parental duties could result in child neglect allegations. As a result, you could lose custody altogether.

If you’re in a situation like this, don’t panic. Our Orange County family lawyers are just a phone call away at (845) 605-4330!