Marijuana Use in New York Custody Cases

Does Marijuana Use Affect Custody in New York?

If you are going through a custody dispute in Suffolk County or anywhere on Long Island, you may be wondering whether marijuana use will affect your case. The short answer is yes. Marijuana use remains a relevant factor in New York custody proceedings, even though recreational cannabis is now legal for adults 21 and older. But how much weight a court gives it depends entirely on the circumstances.

At the Law Office of Louis L. Sternberg, we regularly handle child custody matters in Suffolk County Family Court in Central Islip and Supreme Court. We have seen firsthand how marijuana use can be raised as an issue in custody litigation and how the courts are treating it in the post-legalization era.

New York’s Marijuana Legalization and the MRTA

New York legalized recreational marijuana on March 31, 2021, when Governor Hochul signed the Marihuana Regulation and Taxation Act (MRTA) into law. Under the MRTA, adults 21 and older may legally possess up to three ounces of cannabis flower or 24 grams of cannabis concentrate. The law also created a framework for licensed dispensaries, established the Office of Cannabis Management, and provided for the expungement of certain prior marijuana convictions.

Importantly for custody cases, the MRTA includes a specific anti-discrimination provision. NY Cannabis Law § 127(5) provides that no person may be denied custody, visitation, or parenting time solely because they engage in conduct that is legal under the cannabis law, unless the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of being impaired as a result of that person’s behavior, established by a fair preponderance of the evidence. The statute further specifies that this determination “cannot be based solely on whether, when, and how often a person uses cannabis without separate evidence of harm.”

This is a meaningful protection, but it is not the blanket shield many people assume it to be.

How Do New York Courts Treat Marijuana Use in Custody Cases?

The trend in both Family Court and Supreme Court is toward a more measured view of marijuana use in custody matters. Courts are increasingly drawing an analogy to alcohol: occasional, responsible use by a parent who is not exercising parenting time at that moment is generally treated differently than habitual or heavy use that interferes with the ability to care for a child.

That said, every judge has broad discretion, and you should not assume that legality equals irrelevance. Here is what the courts typically consider:

Frequency and Pattern of Use

A parent who uses cannabis occasionally, and only when the children are not in their care, will be treated very differently from a parent who is smoking daily or who is regularly under the influence while responsible for a child. The court is not required to ignore a pattern of heavy use simply because cannabis is legal.

Use During Parenting Time

Using marijuana while you are the responsible parent is where the real risk lies. If your co-parent can show, through testimony, text messages, social media posts, or observations, that you are regularly impaired while caring for your children, a judge may draw a negative inference about your fitness as a custodial parent. This is no different from how a court would view a parent who drinks heavily while supervising children.

Secondhand Smoke and Children’s Exposure

Courts have shown concern about children being exposed to secondhand marijuana smoke, particularly with younger children. Cannabis edibles eliminate this concern but raise a different one: the risk of accidental ingestion by children. If edibles are accessible to children in the home, that can be raised as a safety concern in a custody proceeding.

Driving Under the Influence

Driving while impaired by marijuana with a child in the vehicle is a Class E felony under Leandra’s Law, the same as drunk driving with a minor passenger. Any evidence of this type of conduct will be taken extremely seriously by the court and will almost certainly affect custody and visitation arrangements.

Substance Abuse Evaluations in Custody Cases

When marijuana use is raised as an issue in a custody proceeding, the court may order a substance abuse evaluation. These evaluations are conducted by licensed professionals and are designed to assess whether a parent has a substance use disorder and whether that disorder, if one exists, affects their ability to safely parent.

A substance abuse evaluation is different from a simple drug test. Drug tests can confirm recent use, but they do not measure impairment or parenting capacity. An evaluation looks at the broader picture: how frequently the parent uses, whether they can control their use, whether their use has caused problems in other areas of their life, and whether it poses any risk to the child.

In Suffolk County Family Court and Supreme Court, judges may also order random drug testing as a condition of a custody or visitation arrangement, even though marijuana is legal. The purpose is not to punish legal use but to monitor whether use is occurring during parenting time or at levels that suggest a substance abuse problem.

Medical Marijuana and Custody in New York

Many clients assume that having a medical marijuana card provides additional protection in a custody case. It does not, at least not in the way most people expect. A medical marijuana prescription does not give a parent unlimited latitude to use cannabis without consequence in a custody dispute.

The court’s analysis remains the same regardless of whether use is recreational or medical: is the parent’s marijuana use affecting their ability to provide a safe, stable environment for the child? A prescription may explain the reason for use, but it does not override the court’s obligation to evaluate the child’s best interests. If medical marijuana use causes impairment during parenting time, the court can and will consider that.

Practical Steps If Marijuana Use Is an Issue in Your Custody Case

If marijuana use is a factor in your custody case, there are steps you should consider regardless of which side of the issue you are on:

If your use is being challenged: Do not use cannabis during parenting time or in the hours before your parenting time begins. Keep cannabis products stored securely and out of reach of children. Do not post about marijuana use on social media. Be prepared to submit to drug testing if ordered. If you have a medical card, keep your prescription current and be able to explain why the medication is necessary.

If you are concerned about your co-parent’s use: Document specific incidents, not general suspicions. A court needs concrete evidence, not just an allegation that your co-parent “smokes pot.” Text messages, photos, witness observations, and police reports carry weight. Vague accusations without supporting evidence are unlikely to change a custody outcome.

In either scenario, working with an experienced custody attorney who handles cases in Suffolk County and Long Island courts is essential. The way this issue is presented, or defended, can significantly affect the outcome.

How Marijuana Use Has Affected Custody Cases: Real-World Examples

To illustrate how courts handle these situations in practice, consider the following examples based on common fact patterns we see in Suffolk County and Long Island custody cases. Names and identifying details have been changed.

The Weekend-Only User

A father in a contested divorce used cannabis on occasional weekends when the children were with their mother. The mother raised it as an issue in her custody petition, arguing that he was a “drug user.” Because he could demonstrate that he never used during his parenting time, kept no cannabis products in the home when the children were present, and had no history of impaired behavior around the children, the court gave the allegation little weight. His custody arrangement was not materially affected.

The Daily Smoker

A mother with primary physical custody was smoking marijuana multiple times per day, including while the children were home. The father presented text messages in which she discussed being “high” while watching the kids, and a neighbor testified about the smell of marijuana coming from the apartment at all hours. The court ordered a substance abuse evaluation, which identified a cannabis use disorder. The court modified custody and required the mother to complete a treatment program before unsupervised parenting time would resume. The fact that marijuana was legal did not insulate her from consequences.

The Edibles Incident

A parent kept THC-infused food products in a location accessible to the child. A young child ingested several, resulting in an emergency room visit. Child Protective Services (CPS) was called, and the incident became central to a paternity and custody proceeding. This is exactly the type of “separate evidence of harm” that § 127(5) contemplates. The issue was not that the parent used cannabis, but that the child was directly endangered by how it was stored.

CPS Investigations and Marijuana Use

Parents in Suffolk County should also be aware of how Child Protective Services interacts with marijuana use in custody situations. Under the MRTA, CPS is not supposed to file a report or initiate a case based solely on a parent’s legal use of cannabis. However, in practice, marijuana use is still frequently mentioned in CPS reports as a supplemental concern alongside other allegations such as neglect, inadequate supervision, or unsafe home conditions.

If CPS becomes involved in your case, the investigation can directly affect your custody proceeding. A finding of neglect, even an indicated report that does not result in court action, can be used as evidence in Family Court. If you are facing both a CPS investigation and a custody dispute that involves marijuana use, you should consult with a family law attorney immediately, as the two proceedings can influence each other.

Marijuana Use Combined with Other Concerns

Marijuana use rarely exists in a vacuum in custody litigation. It is often raised alongside other concerns: domestic violence, neglect allegations, mental health issues, or other substance use. When marijuana use is combined with these types of allegations, the cumulative effect can be far more damaging than any single factor alone.

For example, a parent who uses marijuana occasionally but also has a history of orders of protection against them will face a much steeper uphill battle than a parent whose only issue is occasional cannabis use. Courts look at the full picture, and marijuana use often becomes one piece of a larger argument about fitness and judgment.

Frequently Asked Questions

Can I lose custody for using marijuana in New York?

Not solely for legal use. Under NY Cannabis Law § 127(5), you cannot be denied custody based solely on the fact that you use marijuana. However, if your use impairs your ability to care for your child, or puts the child in danger, the court can and will consider it.

Does a medical marijuana card protect me in a custody case?

A medical marijuana card explains why you use cannabis, but it does not shield you from scrutiny. The court’s focus is on whether your use, medical or recreational, affects your parenting. If it does, the card will not prevent negative consequences.

Can my co-parent use my marijuana use against me in court?

Yes. While legal use alone is not supposed to be the sole basis for a custody determination, your co-parent can raise it as one factor among many. The court will evaluate the totality of the circumstances, including how often you use, whether you use during parenting time, and whether your children have been exposed to any risk.

Can the court order drug testing for marijuana in a custody case?

Yes. New York courts can order drug testing as part of a custody proceeding, even for legal substances. This is similar to how courts can order alcohol testing. Refusing to comply with a court-ordered drug test can itself have negative consequences for your custody case.

What if I only use marijuana when my children are not with me?

This is generally the strongest position. A parent who uses cannabis only when the children are with the other parent, and who is never impaired during their own parenting time, is far less vulnerable to a challenge on this basis. That said, heavy daily use can still be raised as evidence of a substance abuse issue regardless of timing.

Can CPS take my children because I use marijuana?

CPS is not supposed to file a report or remove children based solely on a parent’s legal use of cannabis under the MRTA. However, if marijuana use is combined with other concerns, such as an unsafe home environment, neglect allegations, or a child’s accidental ingestion of THC products, CPS may investigate. A CPS finding can then be used as evidence in a custody proceeding.

Contact a Suffolk County Custody Lawyer

Marijuana use in New York custody cases is a topic that continues to develop as courts, attorneys, and families adjust to legalization. If cannabis use is an issue in your custody dispute, you should speak with a family law attorney who handles these cases regularly in Suffolk County and Long Island courts.

At the Law Office of Louis L. Sternberg, we offer free consultations to discuss your situation. Contact us at 631-600-3295 or use our online intake form to get started.

---

---