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Law Office of Gary R. Swavely, Jr. Blog

Wednesday, February 27, 2019

Marijuana and Child Custody in Pennsylvania - What You Need to Know


In 2016, the Pennsylvania legislature passed laws legalizing medical marijuana.  However, marijuana is still an illegal drug under federal laws. Therefore, an individual could be prosecuted under federal laws for drug crimes for possessing and using medical marijuana because of conflicting federal and state laws. When a parent is actively breaking the law, that fact can typically be used against the parent during custody battles. However, what happens when state law permits the action, but federal law does not?

In the blog below, our Pennsylvania child custody lawyer discusses some of the issues that parents should be aware of regarding marijuana and custody in Pennsylvania.

Evolving Marijuana Laws in Pennsylvania


Parents often disagree about issues related to their child’s upbringing. The use of medical marijuana by either parent or the child can be a source of substantial conflict between parents. Unfortunately, custody laws have not caught up with the laws regarding medical marijuana.

Pennsylvania Health and Safety Statute §10231.2013 states that the use of medical marijuana in accordance with state laws is not a consideration by itself in a custody case. The provisions of 23 Pa.C.S. Ch. 53 are to be used when determining the best interest of the child. However, the custody laws have not been amended to address the issue or make similar limitations regarding the use of medical marijuana by a parent.

Viewing Medical Marijuana As a Prescribed Drug

Medical marijuana can impair a person’s ability to operate a vehicle or other machinery. The use of medical marijuana is not without risk or side effects. However, it is legal and may be prescribed by a physician as a treatment for some illnesses.

When used as directed and in accordance with the law, the use of medical marijuana falls within the same category as the use of other medication that could impair a person’s abilities, such as pain medication. If the parent is not abusing medical marijuana, the courts are likely to view the use of medical marijuana in the same way it would view the use of other prescription medications with similar side effects.

Another potential view a court might take is a view similar to the use of alcohol. A parent may have strong objections to the consumption of alcohol. However, consuming alcohol is not illegal and should not be used by itself to determine custody. When a parent is an alcoholic or the use of alcohol impacts parenting, the issue could become a factor in a child custody case. Abuse of medical marijuana could be viewed similarly.

Judges in family courts throughout Pennsylvania will continue to judge cases based on the unique facts within the case. Therefore, the issue of medical marijuana is unlikely to be decided with any certainty unless the legislature amends Pennsylvania’s child custody laws to address the matter.

Contact a Pennsylvania Child Custody Lawyer for More Information

A parent who is concerned that the child’s other parent is abusing medical marijuana or using medical marijuana in violation of state laws should discuss the matter with a Pennsylvania child custody lawyer. Contact our Pennsylvania child custody lawyers today.

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