08/06/2012 12:17 pm ET Updated Oct 06, 2012

Pot Smoking Vs. Medical Marijuana: What Are The Implications In A Custody Dispute?

Since the legalization of medical marijuana under certain circumstances in California, Michigan and several other states, there has been a lot of discussion about the implications of this in divorce. I have talked with judges in particular about the impact this has on child custody and parenting time.

Marijuana is illegal, and therefore smoking marijuana could definitely have an impact on a divorce, especially if it is being done openly. What about when one spouse has a license for medical marijuana? Can medical marijuana have an impact upon child custody? I believe it can. Can it impact parenting time? Yes, but in both cases, it's a matter of the degree of exposure to the children. If smoking marijuana with a medical license is done out of the presence of children, then it should have little impact. On the other hand, if it is done regularly in the presence of children, it could definitely have an impact on custody and parenting time. In a close case, the non-marijuana smoking spouse could possibly receive primary custody.

The primary issue is the exposure of the children to the pot smoking, even with a medical marijuana license. If it is being used every day, then there are issues of second-hand smoke -- especially with regard to marijuana where you can get a contact high. That may certainly have an impact on custody decisions. On the other hand, if the marijuana use is limited -- perhaps to evenings when the children are not around or the days where the parents don't have custody in a shared arrangement -- then it is going to have very little impact.

It also depends on whether or not the other spouse is going to make the marijuana use an issue in court by bringing up the amount of exposure and the children's ages. The court's attitude will also impact the ultimate verdict. Some communities are much more liberal with regard to medical marijuana; some communities and courts are much more conservative.

Many people believe that marijuana should be legalized entirely and regulated like other drugs, such as alcohol. If this were the case, then marijuana would be treated like alcohol in family court and it would still have an impact on custody decisions, especially if it is used to excess.

The reality today is that marijuana is not legal, though medical treatment with marijuana licenses is permissible in certain states. In those cases, I think the analogy should be to alcohol; If someone is an alcoholic, that is definitely going to have an impact on parenting time and custody. If someone is using medical marijuana to a large degree, it would definitely have an impact as well.

If I am representing a client where medical marijuana is an issue, here's what I would advise:

1. If custody and parenting time are issues in a divorce, I would make sure that my client would agree to not using marijuana in front of the children.

2. I would make sure there is a schedule that is strictly adhered to so that the children are not exposed to the marijuana and that there is little danger to them being exposed to the second-hand smoke. This could be done by making sure the smoking is done only when the children are not around and only out of the home. he key is what is in the best interests of the children.

However, this is an issue that is to be discussed on a case by case basis between attorney and client.

These are my thoughts. Please share yours with us as well.