Indiana has not yet legalized marijuana for recreational use. However, a recent announcement makes it clear that they will not be prosecuting simple possession charges of marijuana, either. With more states looking to decriminalize, this has created an issue for the courts. Can marijuana use be used against you in an Indiana child custody case? The answer is yes, but the courts will not treat marijuana the same way they did a decade ago. Instead of marijuana use being an automatic black mark against you, courts will now begin treating it closer to alcohol use. This means that your consumption of marijuana may not (in and of itself) disqualify you from retaining custody of your children, but if the marijuana use makes you unstable, then it can.

So, while the issue is not quite as black and white as it used to be, marijuana use can be used against you in a child custody dispute.

Understanding the Issues

Problematically, there is no real standard for dealing with the marijuana use of a parent who is attempting to gain custody of a child. Whereas prior, evidence of drug abuse was prohibitive, today, marijuana is unlikely to be treated the same way as meth or heroin. Nonetheless, you are rolling the dice before a judge who may not share society’s evolving values on the topic. They may consider marijuana use to be a danger to the children. Further, marijuana is still illegal in Indiana. So, evidence of criminal behavior could be used against you if the judge is receptive to those types of arguments. Then again, it may not be. You just don’t know. 

Analyzing the Standard in Custody Cases

The courts will decide custody based on the best interests of the child. One case involved a father who alleged that the mother of his child fell asleep leaving the children unattended after smoking marijuana. The court changed physical custody from the mother to the father on the basis of this argument. The mother appealed the decision but lost. In this case, the father was able to argue that the repeated marijuana use created an unsafe environment for the child. 

Nonetheless, marijuana use alone was not enough to prevent the mother from retaining custody of the children. The father was forced to argue that the subsequent failure to supervise the children placed them in danger. This argument could have been made without mentioning marijuana use. In other words, marijuana use is incidental to the fact that the parent left the children unattended. 

If you use marijuana and are in a custody battle, the other parent can use this against you. How much traction the argument gains will be up to the judge. The argument that marijuana use places children in danger automatically is becoming weaker. Establishing the potential for actual harm is still necessary.

Talk to an Indiana Child Custody Lawyer Today

Chris Arrington handles complex custody disputes in Indiana. Call today to discuss your situation in more detail and we can begin preparing your arguments immediately.