Marijuana has been legal in Washington, Oregon, and California, as well as other states, for several years now. This has understandably caused quite a ruckus in multiple arenas, including family law.

As with many new laws, the full impact of legal marijuana wasn’t immediately apparent. It takes time to see how the courts will apply these statutes, rule on cases, and generally interpret them.

But since these laws have been in place for quite a while now, we’re able to see larger patterns, get a general idea of what this looks like in a practical, real-world sense, and uncover unanticipated issues or problems.

When it comes to family law, especially child custody, a common comparison point for weed has always been alcohol use. Both are substances that, while legal, have the potential to be abused.

“The courts have adjusted a lot more to [legal marijuana]. And therefore, it's still like alcohol,” says Colin Amos, the managing attorney at our Portland office. “You can over consume it [and] it can affect child visitation.”

Again, since both are legal, simple occasional, recreational use shouldn’t have too large an impact on a custody or visitation situation. However, in both cases, if it becomes an issue of addiction, overconsumption, or putting a child in harm’s way, then it likely will play a part.

Though alcohol and marijuana are often treated similarly in a legal sense, there are times when the approaches differ.

“The problem [with marijuana], unlike alcohol, it's much harder to gauge on a regular basis,” Colin continues. “Because right now [with] alcohol, with alcohol consumption, if the court feels that there's overuse of alcohol, you know, they'll do what’s called Soberlink.”

For the uninitiated, Soberlink is a service commonly used to monitor alcohol use in situations when it has proven to be a problem for one parent. It’s essentially a court-ordered breathalyzer test and comes into play two different ways.

First, is to monitor alcohol use during parenting time. For example, one parent tests before scheduled visitation to make sure they’re sober when they’re with the kids. Second, is with a daily schedule to ensure continued sobriety.

Remote and Wi-Fi based, Soberlink offers a simple, straightforward way to test and supervise alcohol consumption. With marijuana, however, there’s no similarly easy way to monitor recreational use. That makes it more difficult to analyze and track.

“So, you don't have to have this overly invasive process to verify that you're not drinking,” Colin says. “We don't have that process for marijuana. And so, somebody says that they're a heavy marijuana user and they're smoking pot all the time and all these allegations. So, it's harder for the court to really get a finger on, well, is it a problem?”

According to Colin, the courts then must take a more old school approach. One that involves things like testing hair follicles and fingernail scrapings to determine what’s in a person’s system.

This more intrusive process makes it much more difficult and time consuming to monitor marijuana use in parents.

In the end, overconsumption of any drug can negatively impact your custody case. The best solution may be, to quote Colin, “Be careful, don’t do drugs.”

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