Non-Medical Marijuana Use is Now Legal

Arizona voters decided to approve Proposition 207 to legalize possession of marijuana in Arizona and permit recreational use of marijuana.

The new law will set up a licensing system that will allow retail sales of marijuana to adults age 21 and older—no medical marijuana card needed.

Retail sale of marijuana could begin sometime in March of 2021.

In addition, once the voting results are made official at the end of November, adults can grow and possess as many as six marijuana plants at home.

Intersection of Marijuana and Child Custody

There were many people for and against the passing of Proposition 207. Politics aside, a key area of uncertainty moving forward lies in how marijuana use will be treated by the divorce courts in Arizona.

Up until now, marijuana has been an illegal drug—technically it still is under federal law. Before marijuana became legal for medicinal use, parents who tested positive for marijuana could and typically had their parenting rights restricted.

Restricting Parenting Rights

In a divorce, legal separation, paternity, or any other case involving the custody (legal decision-making and parenting/visitation time) of a child, the court can by request of a party order that a parent or party take a drug test.

Drug Testing

The court can even order randomized drug testing, regular testing over a period time, or really any drug testing regime the court deems necessary to assess a potential substance abuse problem. In fact, the family court almost always will order randomized testing for a period of time for a parent to prove future sobriety.

Generally speaking, if a parent tested positive for marijuana in the past, the family court would heavily restrict that parent’s parenting time. That parent would typically have supervised parenting time only, and often in an amount quantified by hours, not days, per week.

Medicinal Use Permitted

Once medicinal marijuana became legalized, the courts eased up slightly. Generally, if you had a medical marijuana card, the family court would not limit your parental rights even if you tested positive for marijuana.

As marijuana usage became legal in other states and more prevalent for medicinal use in Arizona, anecdotally speaking I noticed a shift in some judge’s mindsets about marijuana, often analogizing it to alcohol. However, still, use without a prescription would still result in parenting time restrictions.

For context, alcohol is not illegal and would generally not have any negative impact on custody so long as there were no substance abuse problems (potentially evidenced by a DUI).

So, a parent is generally fine to (responsibly) consume alcohol and have no negative repercussions affecting their custody rights.

Now the question becomes whether the same can be said of consumption of marijuana now that it is being legalized to include recreational use.

Uncertain Transition to Acceptance

As with various decisions to be made, if you are going through a divorce or legal custody case, you should consult with an attorney to discuss whether you should consume marijuana legally even if permitted by state law. During the next several months and even few years, the legal implications of recreational marijuana use pertaining to family law cases will be developed and teased out.

No one wants to be the poster child or cited legal case for what not to do. So, I think it behooves anyone who is or might soon be going through a custody case to make a game plan with a family law attorney before consuming marijuana recreationally.

All that being said, there are some things to consider and guard against IF you are using or plan on using marijuana recreationally.

Too Much Marijuana?

First, the amount of marijuana consumed may be a factor, or problem. When taking a drug test, the common 5-panel test will measure the amount of marijuana in your system. Up to now, if the test came back positive, then your parenting rights could be impacted, regardless of the level of THC in your system. Thus, the exact level was not very important.

But now, the court may start to look at the level of THC in your system to analyze whether there is a substance abuse problem.

As mentioned above, for example, even though alcohol is legal to consume, an alcohol abuse problem would negatively impact parenting rights. The court can find an alcohol abuse problem through various evidence, such as DUI arrests and/or convictions, medical records, etc.

Other Potential Factors

Similarly, the court could look to various evidence of a marijuana abuse problem, which could impact parenting rights even though recreational marijuana use is going to be legalized. This could be the amount of THC in your system. Just as with alcohol, it would almost certainly include marijuana related arrests and/or convictions, medical emergencies, and admission to substance abuse programs.

I think the moral of the story here is that it is imperative for people intent on consuming marijuana to do so responsibly and within appropriate quantities (I’m not a doctor, so I have no idea what amount that might be). Otherwise, there could be a serious risk that an otherwise legal act can cause months or even a year or more of lost parenting time and rights.

Any Use for a Medical Card?

If marijuana use is legal recreationally, I imagine a good deal of people who had medical cards will forgo renewing them in the future. Proposition 207 only allows a smaller quantity of THC for recreational use sales of marijuana in edible forms compared to medicinal use. Nevertheless, I still think a good portion of people will question whether there is a point or need in keeping up a medical marijuana card when it’s no longer needed in Arizona to consume marijuana at certain concentrations.

Given the newness of recreational marijuana use, there is a legitimate question whether there will be a stronger protection for parents who consume marijuana that have a medical card versus those that do not. Thus, again, I would recommend that you strongly consider consulting with a family law attorney before deciding to forego a medical marijuana card if you plan to consume marijuana recreationally.

Having a card is no get out of jail free card, or silver bullet against getting into hot water with the family court in a divorce or custody case in Arizona. However, it does potentially lend credibility and more legitimacy to marijuana use and/or demonstrate the absence of a substance problem.

Fixing Past Drug Problems

One of the aspects of Proposition 207 is to permit certain people convicted of certain marijuana-related crimes to petition to expunge their criminal record.

At this time and at the time dispensaries will be able to legally sell marijuana for recreational use, there are and may still be parents whose parenting time has been and continues to be highly restricted for prior marijuana use.

This begs the question whether a parent whose parenting time was restricted due to prior non-medicinal marijuana use will be able to expediently have their restrictions lifted, comparable to a criminal expungement. From what I can tell it’s uncertain, or at least no guarantee, but I do think it would be wise to file a motion to amend any parenting rights that are currently being restricted due to prior “illegal” marijuana use.

When parenting rights are restricted due to drug use, the restrictions generally last until several months of random drug testing demonstrates no more positive tests. Thus, filing a motion to effective reinstate parenting rights might be a faster alternative. Of course, this line of thinking would not apply if parenting rights were restricted due to illegal drug use for other drugs like opiates.

Time Will Tell

With the passing of Proposition 207, there will undoubtedly be a shift in the family court for divorce, paternity and custody cases as it relates to marijuana use by parents. Presumably, parents will no longer have their parenting rights highly restricted due to recreational marijuana use. It remains fresh and unclear exactly how things will evolve, how quickly, and what thresholds and/or factors may still apply to people otherwise legally consuming marijuana in the future.

If you’re involved in a family law case in Arizona and are concerned about marijuana issues, then get in touch with use to get guidance on how this recent change in the law may impact your case and your rights.

Disclaimer: Proposition 207 still needs to be implemented into law. Nothing in this article is legal advice and does not serve to approve or authorize recreational marijuana use. Marijuana remains illegal under federal law.