With the recent legalization of marijuana in New York State, many New Yorkers are still left wondering what their rights are in regard to usage and how that might affect them and their families, since issues of legal versus illegal marijuana usage are new and there is minimal established Court precedent to offer guidance. If you are stopped by law enforcement or found using marijuana in a public place, even at a routine level, you could risk losing custody of your children or having them removed from your care by Child Protective Services. This article discusses the aspects of how marijuana usage could affect you in the courts, and what we have seen so far in regard to this hot topic issue.

One of the main points to realize when dealing with issues surrounding marijuana, is that possession of a legal amount of marijuana, or use of marijuana in limitation should not affect custody or parenting time. When legalizing marijuana, New York placed many restrictions on it, such as the amount of THC contained, how it is produced and sold, and setting certain age limit requirements. Therefore, if you are using marijuana that has been approved and follows New York regulations, you should be fine. However, as with all substances, it is important to take note of how much you use, how it affects you in particular, and limit yourself to safe amounts, especially if you are going to be around your children, or worse, drive with them. For example, if you are at home or having a gathering at your home with alcohol, you can make sure your young children are not consuming it. With marijuana, if you or your guests are smoking marijuana in a confined space, the children will be breathing in secondhand smoke that could affect them. This action could be considered endangering the welfare of a child or Inadequate guardianship.

At this point, New York has no approved technology for the detection of marijuana-impaired drivers. Researchers have however, developed a rapid test to reliably detect THC in a person’s saliva in under five minutes. This test reflects use within the past 12 hours and quantifies the amount of THC found. The issue is New York State does not have a guideline for the amount of THC to be impaired. Nevertheless, the use of marijuana while driving or under the influence remains prohibited and will carry the same penalties as it does currently.

When you consider legal marijuana in the context of criminal law, things start to get more serious. Being caught for driving while intoxicated (DWI) or driving while ability impaired (DWAI) is an almost guaranteed way to lose custody or parenting time with your children. A DWI or DWAI involving minimal blood alcohol content (BAC) while driving by yourself, should not result in a court ruling or Child Protective Services becoming involved with you and your family. It is when the issues of substance and alcohol abuse and misuse begin to compile, that courts and Child Protective Services will begin to take notice. If you do have a history of misuse of marijuana and other drugs, you may end up being required to have an alcohol evaluation or go to drug counselling. For more serious incidents that directly threaten you, your family, or your children’s safety, you will most likely end up having your children taken away and losing custody or parenting time with your children.

This would also apply to the use of marijuana and driving while ability impaired by drugs. If your children are with you in the car at the time, according to Leandra’s Law (Child Passenger Protection Act), it is an automatic felony to drive drunk or impaired by drugs with a person under the age of fifteen in the vehicle. Even if it is your first offense, if you have a blood alcohol content of over 0.08 or are under the influence of drugs, you will be a long way from seeing your children again. Child Protective Services will file in Family Court with neglect, and you may not even have the chance to contact your children until after your court appearance. This only worsens if you get into an accident with the children in the car. Any sort of contact you might have with your children after an event like this will most likely have to be supervised, and any chance of you having unsupervised custody would be a long way off.

I’m sure many of you are thinking: “You just stated above that New York has no tests available for marijuana, and no technology!” However, New York does have police who are trained to detect if you are under the influence of drugs. If the officer completes his test and affirms you are under the influence, the police can arrest you and have additional testing done.

So, let’s say in a worst-case scenario, you have a petition filed against you in Family Court for abuse or neglect, or a Child Protective Case opened because of your drug use, it is important that you know your rights in these situations. In particular, Child Protective Services could very well gather enough evidence against you on a casual visit/check in to your home. If this happens, you do not have to let them into your home or talk to them. Anything you say or they see can be used against you. In these situations, call your attorney, as issues surrounding marijuana are still a moving target in Family Courts. Even if you do not have an attorney on retainer, or if they are not versed in family law, it is important you communicate with legal experts so you can get the protection necessary to keep your family in your life. Under no situation are you obligated to talk to Child Protective Services or whomever may be coming to question you, without consulting an attorney first.