Colleen McCue Norcross


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In early 2016, the Pennsylvania General Assembly passed the Medical Marijuana Act (25 P.S. §10231), which permits marijuana to be used for the treatment of certain conditions including, but not limited to, cancer, epilepsy, inflammatory bowel disease, post-traumatic stress disorder, glaucoma, severe chronic or intractable pain, autism, and anxiety disorders.  While this Act has enabled many people to find relief for illnesses and pain that was not otherwise treated by traditional medicine, it has also created substantial conflict and uncertainty in custody cases.  Parties often disagree on the appropriateness of medical marijuana for parents, how much is “too much,” and whether medical marijuana should result in reduced or restricted custody.

In making child custody determinations, the Court is required to address certain factors, including the history of drug or alcohol abuse of a party and the mental and physical condition of a party.  23 Pa.C.S.A. § 5328.  This has long been found to require an analysis of both legal and illegal drugs, and a party’s use or abuse of prescription drugs is, without question, a factor in child custody matters.  The Medical Marijuana Act specifically provides that “the fact that an individual is certified to use medical marijuana and acting in accordance with this act shall not by itself be considered by a court in a custody proceeding,” but the Act also goes on to reference the applicability of the custody factors.  25 P.S. §10231.2103(c)

A party prescribed pain killers or mood stabilizers, for instance, is prescribed certain medications in specific dosages, which are clearly set forth in documentation from the prescribing doctor.  Those dosages can be tested and confirmed by basic hair follicle drug testing to determine if a parent is abusing prescription drugs by taking more than the prescribed amount.  However, the waters are murkier when it comes to medical marijuana, which is not prescribed in a specific form or dosage.  And while hair follicle drug testing can quantify the amount of marijuana present in a party’s body, whether or not that amount constitutes “abuse” or “overuse” is subject to analysis and expert opinion.  Without an explicit baseline amount of prescribed marijuana use, there is no definitive point at which a party’s use becomes abuse.

Medical marijuana in the custody context was addressed by the Superior Court of Pennsylvania in 2019, in H.R. and C.A.R. v. C.P. and J.M., 224 A.3d 729 (Pa. Super. 2019), which held that the court is obligated to address a party’s use of medical marijuana in analyzing the custody factors.  Unfortunately for practitioners, the H.R. case involved a father with a long and documented history of drug abuse issues who acquired a medical marijuana prescription in an attempt to justify his continued drug use, which made it obvious that the father’s custody time should be limited.  The appellate courts have not yet offered any analysis on the impact of medical marijuana in cases where there is not an obvious history of drug abuse and where a party’s use of medical marijuana is more legitimate.

So what does this mean for parents facing a custody fight over medical marijuana?  We don’t really know.  One thing is clear, it will add complication to custody trials.  Courts will likely look for testimony from treating physicians as to the parent’s need for medical marijuana, as well as the appropriate amount of marijuana needed to treat the parent.  Expert witnesses may be necessary to analyze drug test results.  As always, though, the court will be looking at what is in the best interests of the children involved, and whether a parent’s drug use, prescribed or otherwise, inhibits a parent’s ability to properly care for his or her children.