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posted on 9/15/19

Imagine going through a long and arduous divorce. When the dust settles, you will have a divorce agreement as well as an Illinois parenting agreement. You are glad that you are finally able to move on with your life and establish a “new normal” for yourself and your children. You are surprised to find that your ex-spouse is now requesting a modification to your parenting agreement. Your ex-spouse is arguing that you are not able to properly care for your children because you smoke too much marijuana. What role does the use of medical marijuana play in divorce and custody agreements? Even though the use of medical marijuana is legal in the state of Illinois, partaking in medical marijuana could have a detrimental effect on your parenting time.

Parenting Time for Divorced Parents Who Use Medical Marijuana

Illinois’ Marriage and Dissolution of Marriage Act governs the allocation of parental responsibilities after a divorce or in parentage proceedings. The statute directs the court to allocate parenting time “according to the child’s best interests.” If the parents submit a mutually agreed-upon parenting plan, and the court approves that plan, their parenting plan will govern as to how much parenting time each parent receives.

Illinois family courts presume that both parents are fit to parent. Courts cannot place restrictions on one parent’s parenting time unless it finds that the parent would “seriously endanger the child’s physical, mental, moral, or emotional health.” To limit parenting time, the court must find that the preponderance of the evidence shows that parenting time would seriously endanger the child’s “physical, mental, moral, or emotional health.” The court uses a factor test to determine whether it should limit the parenting time of one or both parents.

A parent who does not use medical marijuana may allege that the other parent’s use of medical marijuana seriously endangers the child’s health. If the preponderance of the evidence affirmatively demonstrates that one parent’s use of medical marijuana seriously endangers the child’s health, a court can legally restrict the marijuana-using parent’s parenting time. Like alcohol, just because it is legal does not mean you get to use it whenever you want to.

Determining Whether a Parent is Abusing Medical Marijuana is Difficult

Many times, doctors who prescribe medical marijuana do prescribe a large allotment of marijuana each month. Doctors do not specify a set dosage of medical marijuana as they do with traditional medicine. Thus, proving that one spouse took too much cannabis is challenging. Measuring the degree to which a parent is impaired is also challenging. The only way to measure whether someone has marijuana in his or her bloodstream is to conduct a saliva or blood test for traces of tetrahydrocannabinol or THC, the principle marijuana compensate. This test does not measure the exact level of impairment nor does it accurately demonstrate when the person consumed marijuana.

Proving that medical marijuana use on its rise to the level of “seriously endanger the child’s physical, mental, moral, or emotional health” is not easy. If a parent’s medical marijuana use resulted in a car accident or influenced the parent in committing a crime, a judge may limit his or her parenting time as a result. A lack of ability to accurately test for the level of marijuana in the bloodstream makes it difficult to prove the extent to which medical marijuana use contributes to dangerous parenting practices.

Are you in a parenting agreement in Illinois? Do you have concerns about your co-parent’s use of medical marijuana? Or, is your co-parent unjustly accusing you of not being able to parent well due to your medical marijuana use? If so, the Cook County parenting agreement attorneys at Glasgow & Olsson are here to help. To contact our law firm, please fill out our online form for an initial consultation.

(image courtesy of Dimitri Bang)