Pot Patient Wins Custody Case

Defense Attorney Lauren K. Johnson won a major court victory for parents who legally use marijuana for medical purposes last week in Los Angeles.  In the case of Drake A. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that there was no evidence showing that the defendant, a father, is a substance ab­user for simply being a legal medical marijuana patient. The court confirmed that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor’s approval, isn’t necessarily a drug abuser.

The father, “Paul M.” was placed under DCFS (Department of Children and Family Services) supervision after he testified in an October 2011 hearing that he used medical marijuana about four times a week for knee pain.  During that same hearing, he also stated that he never medicates in front of his children, nor is he under the influence while they are in his care.  DCFS supervision requires drug counseling, parenting classes and random drug testing.  During subsequent drug screenings the father tested positive for marijuana, and negative for all other drugs.  As a result, the Superior Court of Los Angeles ruled that the child was to become a “dependent of the court based on the trial court’s finding that [the] father’s usage of medical marijuana placed the child at substantial risk of serious physical harm or illness…”.

“Paul M.” appealed the former court’s ruling, which was challenged in the Second Appellate District of California.  The Appellate court subsequently ruled in favor of reversing the Superior court’s judgment.  The official ruling stated “[that the] DCFS failed to show that [the] father was unable to provide regular care for Drake [the minor child at issue] due to father’s substance abuse.  Both DCFS and the trial court apparently confused the meanings of the terms ‘substance use’ and ‘substance abuse’.”

Johnson issued a press release noting that this is the first case to distinguish between marijuana use and abuse with regards to child protection laws. “In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the ‘mere usage of drugs,’ including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court.”  She went on to say, “The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states. We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm.”

This has been a pervasive issue in California, as well as other medical marijuana states. Legal patients have lost custody of their children and been forced to turn their children over to a juvenile protection agency.  The NORML Women’s Alliance has been working hard to bring this issue to the forefront.  NORML Women’s Alliance Director Sabrina Fendrick issued the following statement; “This ruling is a small victory in our fight for legal marijuana patients’ parental rights.  We hope that future judicial hearings, as well as child protection agencies will utilize this judgment and adopt new policies that reflect the Appellate court’s ruling.”

34 thoughts

  1. I am right now dealing with the SAME situation with my 3year old daughter Lilly, in the state of Wisconsin…I originally began case with DHS because of an abusive ex boyfriend…I helped the D.A. put him in prison because DHS said I had to prove i was not with this man anymore. After i helped the the D.A. DHS CONTINUES to tell me im a BAD parent beause I USE NOT ABUSE marajuana…I have NO criminal record nor ANY record with DHS over my older children…Marinette,Wisconsin is saying that I am NOT capable of taking care of my child ONLY because of THC…NOTHING ELSE!!!! This is a TOTAL WASTE OF TAX PAYERS MONEY!!! There is NO REASON why they are keeping my daughter in the state other than my use of marajuana!!! I have the documentation and court records to PROVE THIS!!! I have NEVER beaten or neglected my children in ANY WAY and i have PROOF!!!!

  2. Molly, you’re not a criminal, the people who think they must do this are confused fools. And I’m not happy they can do this to you. Folks, if you work in child services, stop pretending a person using marijuana is a threat to child safety. You’re not helping when you’re the one causing the problems.

  3. Seems like you’d want to worry more about alcohol, which is often involved in overt acts of cruelty and violence, or physically addicting drugs like heroin or tobacco that take over people’s lives. If the state is going to separate families, there should be a damn good reason based on reproducible science. More drug war cruelty focused on irrational marijuana fears is NOT good public policy.

  4. @Molly

    Hang tough.

    Drug war zealots are perverting the state’s legitimate interest in protecting the well being of children into another cruel tactic. We often hear with disdain about the ‘nanny state’, but the use of the state to foul people’s lives including the children involved is outright reprehensible.

  5. “…confused the meanings of the terms ‘substance use’ and ‘substance abuse’.”

    This interests me, because they seem to be recognizing the difference between ‘use’ and ‘abuse’. Drug war zealots have maintained that there is no difference between use and abuse for decades.

  6. Why is it parents who smokes cigs and drink alcohol are not considered unfit parents? Second hand smoke is deadly, and anyone under the influence of alcohol is a hazard. But cannabis is the demon here?

  7. The possibly wilful melding of “use” and “abuse” is standard in the high-on-the-google “guide to drugs” literature put out by government agencies like NIDA, with the term abuse” used without further explanation for ANY way of ingesting or inhaling cannabis.

    Meanwhile media outlets commonly post a picture of a hot-burning overdose monoxide “joint” at the top of each article about cannabis, omitting any reference to or illustration of any alternative NONABUSIVE method of administration (such as one-hitter or vape).

    Because there is constant crossconsultation and crossbefuddlement between media and government scriveners this battle must be faughdt in both venues, and the safer mechanics of vapor inhalation devices promulgated everywhere.

  8. Gelileo, it is plenty true for many drugs. They just don’t bother mentioning Marijuana isn’t on the list of dangerous drugs, and they have their own fake list. I really do think this is the result of the some truly distorting reasoning. Marijuana is not a “gateway drug”, it is a “drug” you take when you’ve taken too much other shit and it helps your brain keep from frying itself. They dyslexically switch cigettes and marijuana; constantly making dumb comparisons that actually demonstrate why marijuana should be legal.

    All they say is, “We want our kids selling and smoking weed by keeping it on the black market. We want our kids arresting for selling weed”. I just don’t know what is wrong with these folks. All these years pot has been illegal and under permanent attack. Yet it is still safe and it doesn’t cause crime or mental illness. It just turns your eyes red. I guess that must be enough to set off some haters…? In art, demons tend to have red eyes… Is it all a failure of association (like racism)?

  9. The child should be removed if the parents/carer are problem users of any substance. Do they routinely removed children from homes where a bottle of wine is stored or some one has prescription tranquillisers or painkillers ? – no they don’t. If the child is in a smokey room with loads of people getting stoned then that is wrong but a quick joint or a vaporiser out of the child’s sight is OK if alcohol consumption is OK.

  10. so having a kid you get out of jail. what about casual users without kids? hypocrites, all of you congress and senaters, even the president admitted to using drugs. why are they not incarcerated?

  11. I got lucky. Some vengeful old bitch called CPS on me and my Fiance, spreading evil lies about us, even saying my Fiance does cocaine!! So not true!! So a worker visited us, let us know what all the allegations were, and asked if my Fiance would submit to a drug test. He said yes, but admitted to smoking pot occasionally. Our worker (a lovely, understanding lady) immediately asked if he was a medical marijuana patient and had his doctors recommendation, he said yes and presented it. She smiled and said, “ok good! Youre totally fine then. We recently had a meeting and discussed parents who are patients of medical marijuana. As long as you dont do it infront of your child, it doesnt affect h

  12. And as long as it doesnt affect your parenting and judgement, like spending money on weed instead of feeding your child, then you are fine. One more thing, you have to keep any medical marijuana in a safe or lock box, or anything you can lock with a key.” So thats all we had to do. Went to walmart bought a $12 lockbox, called the worker back, she came and checked it and cleared us. Said we will never be bothered by cps again. We live in Riverside County in California, and im glad CPS here, understands medical marijuana use does not make u bad parents 🙂

  13. I grew up in foster care. Sure my mom messed up after dad passed away. “She took us out to a bar and was drinking while me and my brother sat in the back away from the bar and got sodas.” But she was my mom and I loved her. This would have been about 1965. I went from neglect to abuse under the prohibitionist boot, fist, and knoted whip, in two foster homes for seven years. there is a remedy for my foster dads and moms. So called good sunday go to meeting respectable people who made my young life a living hell. It’s called child abuse, and should get you a pair of handcuffs, ride in a police car and orange jumpsuit! Thank you Norml Women’s Alliance for helping break the foster care cycle of abuse. And a message to our goverment and foster care system. You made a mistake when you screwed my mom, and an even bigger mistake when you screwed me, justice!

  14. As a Washington state resident, can my ex-wife make an issue over any pot I smoke in regards to custody of our kids? I’m squeaky clean (both blood and criminal record) but am concerned that if I smoke pot and she finds out, that I’ll immediately find CPS on my doorstep or be served papers for a child support modification and mandatory drug test. Thanks for any up to date advice.

  15. All they say is, “We want our kids selling and smoking weed by keeping it on the black market. We want our kids arresting for selling weed”. I just don’t know what is wrong with these folks. All these years pot has been illegal and under permanent attack. Yet it is still safe and it doesn’t cause crime or mental illness. It just turns your eyes red. I guess that must be enough to set off some haters…? In art, demons tend to have red eyes… Is it all a failure of association

  16. “The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states. We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm.” This is really interesting. It’s an aspect of child custody I never thought of. Thanks for sharing.

  17. I am going through the same thing in Mass. Tested negative for everything including alcohol but failed the marijuana test. Even though I explained to the judge that I only used it in the evening and never once in front of my children. I had a very severe injury at work in Oct. of 2012. I could have died when a large tree limb hit me on my head. I was hospitalized for 3 days. I now have trouble sleeping and have pain throughout the day. I do not want to take narcotics. I even have a letter from my doctor and from CannaMed. My lawyer said because of the new law nobody knows what to do. In the mean time I cannot see my children.
    Land of the free! I am so sick of this. Why do I need to wait to more weeks for a judge? This is so ridiculous.

  18. My sister just lost custody of her two kids to their father who is a pot smoker. Judge threw out the allegations of drug use even though he has a medical card. My sister is a clean hard working woman and now lost her kids to that scum! He had a better lawyer I guess?

  19. My ex husband and I are currently both medical marijuana patients and we have been fighting over visitations and Child Support because he’s non compliant with returning him on time and currently owes child support $12,142.00 for a year. I told him if he doesn’t start complying in no longer going to give him 50/50 if he moves to Orange County. So yesterday I accidently text him that I’m bringing the pipe to Westminster and my mom called me to inform me that the cops showed up saying they got a report of child neglect. I wasn’t home because I was already picking up my son from the sitters so we can hang out with familyfriends. Should I be concerned when that’s brought up in court? Plus I D don’t know what he’s talking about when he leaves his medicine out with hands reach for my son. What a hypocrite!

  20. I would just stop smoking pot then? Just like I would stop drinking, smoking, sleeping, breathing If I had to for my child! JUST STOP! life isn’t fair and is full of choices! MAKE YOURS!

  21. My God people, if you only knew the hell the word pot can be used agasint you in custody cases. Documented proof, admit it or not to smoking pot can cost you your Rights, child or both. It’s documented (kidnapper above the law.mwv) Read documents for proof.


  23. I haven’t seen my daughter in a year four months and 9 days. The dad used my use of marijuana after realizing it was the only thing he could do to stop himself from losing my daughter all together. He smoked long before I did and for the wrong reasons. I have interstitial cystitis, fibromyalgia, chronic fatigue syndrome and degenerative tendinitis on top of PTSD. I see numerous doctors and have remained in the care of a therapist and psychologist both which say I am an excellent mother and doing everything right with the child I DO have custody of. I can’t work, do not collect SSI, my boyfriend of almost 2 years supports us financially but we just can’t afford a lawyer so I can see my baby again. (She’s 10, not a baby, but still my baby) I’ve tried legal aid a few times, begged, borrowed, tried everything I could to figure out a way around this. They want me to complete a hair test and I won’t pass because I choose to medicate with cannabis instead of the 8 pills 3times a day they want me to take. I just can’t do that. I need to be able to function for my other daughter… I’m lost without my oldest, it’s ruining my spirit being away from her. I miss her so much, sometimes I cry and I can’t stop. He won’t even let me talk to her on the phone. They took everything away from me because of weed… because of weed!!! Are you serious?!

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