You don’t think it is right that your ex-husband smokes pot, but all you can do is tell him not to do it around the children. However, your custody arrangement allows him to have the children at his house for a whole weekend every month—and you’re pretty sure he’s not abstaining from using marijuana the whole time. Now that marijuana use has been made legal in Washington State, you have a strange dilemma: How does marijuana use affect you ex’s right to see the children?

Washington Custody Courts May Treat Weed Consumption Like Alcohol or Other Drugs

When considering how marijuana affects a custody case, the court will typically examine the substance use the same way they evaluate other potentially harmful drugs. The laws surrounding marijuana legalization are relatively new, but as pot is now regulated by the Washington State Liquor Control Board, its use (or abuse) is generally treated similarly to alcohol.

When determining if marijuana affects parenting ability, the court may consider:

  • Exposure. The court’s primary concern is if the children are exposed to the parent’s drug use. If the parent only smokes marijuana when the children are not present, the court will likely find that the drug use does not have any bearing on the parent’s custody rights.
  • Frequency. The court may consider how often the marijuana is being consumed. If a parent smokes every day, any child in the house may be at risk from second-hand smoke. In addition, frequent pot smoking increases the risk that a parent will be impaired when a child is visiting, and may be unable to perform parenting duties—such as driving or making important decisions.
  • Child ages. The ages of the children may be considered, as children are at different risks of exposure depending on how old they are. A newborn could be at risk of smoke inhalation, while teenagers may be more likely to find the marijuana and use it while the parent is out of the home.

Marijuana Use May Be Legal, But it Can Still Affect Parent Visitation Rights

Even though your ex is engaging in legal behavior, it does not mean that your child could not be at risk. Many legal activities carry dangers, such as consuming alcohol, taking prescription drugs, or walking in a bad neighborhood—during visitation, your child is exposed to those same risks. However, a family law court cannot base its custody decision on their opinion of you or your ex's life choices, but rather if the behavior is a threat to the child.

If you happen to be that party that engages in regular pot smoking you have a number of options when convincing the judge that you marijuana use won't affect the well-being of the child. Here are a few do's and dont's to remember when making your case in court:

  • Don’t explain the law to the judge. Many parents make the mistake of explaining to the court how Initiative 502 gives them the right to smoke marijuana. Remember: the legality of your actions is not in question, but whether or not you can provide a stable environment for your child.
  • Focus on your strengths. As the court’s primary concern is the best interests of your child, you should show the court that you are committed to providing a safe and nurturing home. Give examples of how you protect your child from exposure to marijuana in your house, and how your use is mindful and responsible.
  • Be open to suggestions. The court may be more likely to grant custody or extensive visitation if you can agree to a proposed schedule that places restrictions on your marijuana use. In most cases, these schedules dictate that the parent refrain from being under the influence of marijuana when they are scheduled to spend time with their children (they do not typically place usage restrictions on non-family time).

The decision about marijuana use will also be affected by the court's attitude about marijuana use. Some courts are liberal toward marijuana, while others are more conservative about the risks where children are involved. While marijuana use alone is not a good enough reason to deny custody, in a close parenting battle, it could make the difference in who gets the children full-time. 

Our office is here to help parents throughout Washington with child support cases and other family law matters. Simply call us at 425-460-0550 or fill out a contact form to schedule a confidential consultation to get the answers to your questions.

Molly B. Kenny
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Divorce and Child Custody Attorney Serving Bellevue and Seattle Washington