One of the policy areas in greatest need of reform involves the typical response of our child custody system in this country when they learn that a parent smokes marijuana; in all states today, including those that have legalized marijuana either for medical use or for all adults, the child custody agency stubbornly maintains an unfair bias against parents who smoke marijuana.
I suspect most of us have personally witnessed the disruption to someone’s life that results when, for any of a number of possible reasons, a parent’s marijuana smoking becomes known to the state’s child welfare agency. Sometimes it is because the couple are going through a hostile separation or divorce, and one parent attempts to use the other’s use of marijuana to gain advantage, either to limit that parent’s access to the children or to get a more favorable financial arrangement. Other times it begins with the complaint of a nosy neighbor who claims to have smelled marijuana (or to have seen someone smoking it), and who calls the authorities.
Regardless of the origin of the complaint or the motivation of the complaintant, once the state’s child welfare agency is called into the dispute, a legal process is begun that will all too often be disruptive to the health and welfare of the child, the very opposite of the stated intent of the inquiry. It is also an expensive and heartbreaking experience to a parent or parents who have to hire lawyers and focus their life for months on end jumping through any number of legal hoops to demonstrate that, despite their marijuana smoking, they remain loving parents who provide a safe and healthy environment for their minor children.
To understand this awkward legal squeeze all too many parents find themselves facing, it is important to realize we have parallel legal systems in effect in these states : one deals with what conduct is or is not criminal; the other focuses only on what is in the best interests of the child. And even as we continue to make progress removing the responsible use of marijuana from the criminal code, either for medical use or for all adults, the child custody courts in those same states continue to begin any inquiry with the presumption that marijuana smokers are not fit parents, and marijuana smoking by adults, even when it is protected conduct under that state’s laws, is dangerous to any children and evidence of an unhealthy environment in which to raise a child.
We know this because the standard response by a child welfare agency when they receive a complaint about marijuana smoking is (1) to demand an immediate home inspection to see if the home is clean and well-kept and otherwise an appropriate environment for a minor child; (2) to require the “offending parent” to take both a drug education course and a parenting course, both paid for by the parent (generally not a great deal more helpful or honest than were the “Reefer Madness” governmental warnings of prior decades), reinforcing the premise that good, loving parents do not smoke marijuana; and (3) to demand the offending parent or parents promise never to smoke in front of the minor children, although marijuana smoking is legal in that state, and there are no requirement that parents hide their alcohol or tobacco use from those same children.
The first requirement (the home inspection) is offensive and insulting to any of us who smoke marijuana responsibly. It suggests that those who smoke frequently live in squalor and do not maintain a clean and well-kept home environment , a prejudice without any basis in fact. We all would agree that parents have an overriding obligation to keep their children safe and healthy, but absent some specific allegation to the contrary, the presumption should always be that the parents are loving and providing a safe environment; and to bring a government inspector into one’s home is not something we should permit without good cause, and the fact that a parent may smoke marijuana should never, by itself, be considered good cause.
The second requirement (the attendance of parenting and drug education courses), without specific credible allegations of abuse or neglect, is demeaning, insulting and an enormous waste of resources. Most of the classes that are available are similar to alcohol anonymous classes, in which the attendees are expected to share their supposed failures of character or responsibility with others , most of whom are also there under court order, in lieu of more serious consequences; and the information provided by these courses presumes all marijuana use is abuse, and that responsible, loving parents would never smoke marijuana. In other words, they are governmental propaganda campaigns intended to justify the status quo and to continue to treat all marijuana smokers as deviants, if not criminal. It is understandable why so many good parents nonetheless agree to jump through these offensive hoops, as the continued custody of their children is at stake. But it is unfair and something we simply must fix.
The third requirement (no smoking in front of the minor children) is one that many parents already follow, as a general rule, although there is not the slightest evidence that smoking marijuana while the kids are in the house is damaging in any way. Even tobacco smokers today frequently step outside to smoke, to avoid the smell of burning tobacco in the home, and the same is true for many marijuana smoking parents. But this should be a matter of parental discretion, not a requirement for maintaining the custody of your children. Just imagine the outrage we would hear if the child welfare agencies began to require alcohol drinkers to limit their use of alcohol in their homes to times when the kids are away, or in bed asleep! It’s true that one who repeatedly abuses his use of alcohol may find limitations imposed on their use. But with marijuana there is no requirement for a showing of abuse; all use is presumed to be abuse, where children are concerned.
So what do we do about this?
Well first, it is crucial that as a movement we continue to move legalization forward to cover more and more states, and that will continue to require some compromises in our proposals, at least in the short run. Following 75 years of prohibition, our initial goals are to stop the arrest of responsible smokers and to establish a regulated market where consumers can obtain marijuana that is safe, high quality and affordable. None of these first legalization proposals will be perfect, and none will solve all the problems caused by prohibition, because they have to pass muster with a majority of the voters, and eventually with a majority of our elected officials.
The three primary areas in which marijuana smokers, even in legalization states, continue to be treated in an unfair manner involve the lack of protections regarding child custody issues, employment discrimination and driving-related offenses. These are all important areas with the potential to unfairly disrupt someone’s life and career for no good reason, and that occurs tens of thousands of times each year around the country. Were we to attempt to solve each of these remaining problems left from prohibition now, we would likely have to delay legalization for several more years, waiting for majority support for what we might consider a perfect bill.
Eventually we will be able to demonstrate that legalization and regulation is in fact a policy that works better than prohibition for all of us, and to convince the public that responsible marijuana smokers should not be treated differently from other citizens in these three crucial areas of the law, or any others. And at that point we must have the political discipline to go back to these early legalization states and fix these deficiencies in the initial versions of legalization.