Law

Even in legal weed states, parents who consume pot can still lose custody of their kids

Nathaniel Rudd didn’t know he was going to be a dad until the mother of a woman he’d dated months before – nine months, to be exact – called him from the hospital.

The next day, Rudd, 31, drove from his home in Twentynine Palms to hold baby Peter for the first time.

He learned from a social worker that Peter’s mother wouldn’t be able to take him home. So Rudd immediately began petitioning for custody.

Before taking a mandatory drug test, he explained that he used cannabis, with a doctor’s recommendation, to treat pain from a car accident he’d been in years earlier. The drug test came back inconclusive, since he hadn’t medicated in several days. But when he went to court a few days later, he learned the damage had been done.

Nathaniel Rudd with his son, Peter. (COURTESY OF NATHANIEL RUDD)
Nathaniel Rudd with his son, Peter. (COURTESY OF NATHANIEL RUDD)

“They told me I was cognitively unable to care for my child because of medical marijuana use,” Rudd said.

Peter was placed in foster care in September 2015. Rudd is still fighting to bring his boy home.

Rudd and his new fiancee are among hundreds of families who are estimated to be facing custody issues in California over medical marijuana use. But they all got a glimmer of hope Nov. 8, when voters approved Proposition 64.

Along with legalizing recreational marijuana, Prop. 64 adds some protections for medical marijuana patients. Among them: California courts can no longer rescind or restrict a parent’s custodial rights solely because they have recommendations for medical marijuana.

State officials say that’s really nothing new, insisting they remove children or restrict custody only if there’s a clear threat or evidence of harm as a result of marijuana use.

“With any drug, there must be a nexus between drug activity or inactivity that directly threatens the safety of the child,” said Michael Weston, spokesman for the California Department of Social Services. “Does the child have access to the drugs? Is the parent incapacitated to the point where they can’t properly care for the child?”

Rudd disagrees, saying he’s been denied custody of Peter strictly based on his status as a medical marijuana patient.

Family law attorneys and marijuana rights advocates say claims like Rudd’s aren’t rare. They cite numerous examples of guardians who’ve lost custody of their kids even though they were never charged with any crime and when children exhibited zero signs of mistreatment.

“The problem is that there is no real way for parents to protect themselves,” said Rachel Beth Wissner, an outreach associate with Massachusetts-based Family Law & Cannabis Alliance. “They can act completely legally under the law – even be more careful, diligent and safe than the laws require – and they can still find themselves at the mercy of child protection services and the courts solely for marijuana.”

One key is that social workers and family law judges have a broad discretion in how they handle these cases.

Some still treat marijuana more like heroin than prescription drugs or alcohol, viewing any use of cannabis – including medicinal – as a reason to remove a child from a home.

And even for family law workers who want to give medical marijuana patients the benefit of the doubt, custody cases are almost never clean cut, sometimes forcing tough calls between the desire to keep families together and the mandate to keep kids safe.

USE VS. ABUSE

It’s standard practice when reviewing child welfare cases to make sure parents are not under the influence of drugs or alcohol while caring for their kids, said family law attorney Robert Curtis, who has an office in Beverly Hills.

“Parenting is the same as driving,” Curtis said. “You can’t be impaired no matter what the source is.”

Marijuana use complicates that idea.

Curtis believes some parents with health problems do a better job of caring for their kids if they’re properly using medicine to treat those conditions.

“We want people who need medication to take it,” he said. “But we need to make sure they are alert and able to properly care for their children.”

It’s unclear exactly how many parents have lost custody of their kids, or had custody restricted, because of cannabis use. But Wissner says parents who want legal help to fight custody cases contact her organization every day.

Medical marijuana use has become a wedge issue in child custody disputes between parents. And it’s sometimes cited as a reason why anonymous tipsters call social services to come out and check on the welfare of children.

Such a tip is what led social workers in 2011 to the home of a Southern California man known in court records only as Paul M, whose story offers a glimpse into how California courts are shifting their view on medical weed.

Paul M. used medical marijuana, legally, to treat arthritis and knee pain. But a court ordered him to undergo drug testing, drug-abuse treatment – and take parenting classes – in order to maintain custody of his then infant son, Drake.

Court records noted that the father didn’t use cannabis around Drake, kept it locked in a box and had help caring for his son when he was medicated. The court also noted that the baby showed no signs of abuse or neglect.

Describing the court-imposed requirements as an “abuse of discretion,” the California Court of Appeals overturned that decision in 2012.

The judges noted in their ruling that county social workers “failed to show… any link between father’s usage of medical marijuana and any risk of serious physical harm or illness to Drake.”

Nathaniel Rudd and his fiancee, Cheryl, with his infant son, Peter.
Nathaniel Rudd and his fiancee, Cheryl, with his infant son, Peter.

In Rudd’s case, he says there was never an opportunity for him to demonstrate his care for Peter, or for authorities to observe any signs of substance abuse. There was only his own acknowledgment that he was a medical marijuana patient.

He also pointed out that he had been dosing with marijuana heavy in CBD (the compound in marijuana thought to have the most medical benefits) but with almost no THC (the main compound that makes consumers high).

Family court records are private, and county social workers said they can’t discuss individual clients such as Rudd.

Though Rudd insists he wasn’t impaired by this treatment and didn’t plan to ever use cannabis around his son, he volunteered to quit using medical marijuana entirely and submit to regular drug testing.

Still, to date, he’s been unable to gain custody of Peter.

PROP. 64 IMPACT?

Dale Gieringer – who hears from affected patients in his role as director of the California chapter of the advocacy group NORML – said it’s too soon to know whether Prop. 64 will impact child custody cases for medical marijuana patients.

Curtis and other lawyers don’t think many cases will be affected by the new law. Most social workers and judges, they said, already view marijuana use as one issue to be weighed in context with others, not as the only reason for breaking up a family.

“Prop. 64 will likely have a limited effect because it’s restricted to medical patients and continues to allow state-legal medical marijuana use to be a factor in determining custody decisions – just not the sole one,” Wissner said.

It’s often hard to nail down that custody decisions were tied solely to medical marijuana use, Gieringer said. And, due to the discretion case workers have, he said policies aren’t applied consistently across the state.

“It undoubtedly varies from county to county,” he said, noting that pot-friendly regions like his own Alameda County are more accommodating to parents who are patients.

So while Prop. 64 may not have much affect on the way custody cases are handled in some California counties, it spells out in state law for the first time that there must justification beyond someone’s status as a medical marijuana patient in order for authorities to limit parental rights.

“Time will tell how this plays out in the courts,” Wissner said. “It is certainly better than the complete lack of protections that existed before.”

Rudd hopes so. As stigma surrounding the plant declines, Rudd wants family law authorities to treat cannabis like they treat other legal but mind-altering substances.

“There are parents that have a glass a wine at dinner and they’re good parents. There are other parents who are alcoholics and can’t control the problem,” Rudd said.

“The same is true with marijuana. If there’s a problem, it’s with the parents, not the substance.”