Analysis of new caselaw: H.R. and C.A.R. v. C.P. and J.M.

By Lori K. Shemtob

 Lori K. ShemtobThe Pennsylvania Superior Court issued a decision on December 18, 2019 addressing the use of medical marijuana and a parent’s custody time. After a two day trial the court concluded that Father’s time with his child should remain supervised, but it must be noted that the court was clear in its opinion that the use of medical marijuana was not the sole reason for supervised custody. 

The facts of this case are as follows: 

Mother’s parents, the Grandparents, had custody of their ten year old grandson since 2012, when he was about 3 years old.  Both Mother and Father had a history of substance abuse and Father also had a recurring history of recreational use of marijuana. The evidence at trial reflected that Father, at one point in time, actually fed the child a graham cracker topped with marijuana-laced peanut butter.

Father’s physical custody, under the 2012 custody order was three hours of supervised visits with the child on alternating Saturdays.  

In 2014, Father petitioned the court requesting additional time with the child and requesting that his visits be unsupervised. 

After listening to all of the testimony, the court found that the order of supervised visits should remain in effect. However, the court gave Father the opportunity for unsupervised time in his home on alternate Saturdays for three hours “provided and contingent upon Father’s willingness to demonstrate sobriety and continued abstinence through submission to hair follicle tests… at intervals of six (6) months for two (2) years from the date of this Order. In the event the first test administered within thirty (30) days of the date of this Order is negative, then Father may have the aforementioned unsupervised visitation provided that he continues to submit to other hair follicle tests…. In the event that any of the four (4) hair follicle tests are positive then supervised visitation shall continue until Father tests negative.”

In 2018, Father petitioned the court again, and testified that he uses medical marijuana for medical reasons because of severe pain in his wrist. A complete custody trial took place over two days in which the court went through the 16 custody factors under Pennsylvania law, which the court is required to do in any custody case pursuant to 23 Pa C. S. Section 5328 (a).  After examining the 16 factors a court is charged with the responsibility of determining the best interest of the child with regard to custody.

At trial, Father did not have his doctor testify to show that his wrist problem necessitated the use of medical marijuana and there was no testimony offered by Father or any expert to show how the use of medical marijuana might affect Father’s parenting ability. 

The court held that custody should not be changed, specifically stating that “without benefit of testimony from the doctor who Father alleges authorized the use of medical marijuana, it is not in the best interest of the child to expand Father’s partial custody.”

Father appealed on the basis that the Medical Marijuana Act states “[t]he fact that an individual is certified to use medical marijuana and acting in accordance with this act shall not by itself be considered by the court in a custody proceeding. In determining the best interest of a child with respect to custody the provisions of 23 PA. C.S. Chapter 53 relating to child custody shall apply.”

The court in this case considered all the custody factors, including Father’s background in using recreational marijuana, the fact that Father fed the child marijuana-laced food, and the fact that Father had housemates that were not appropriate to be around the child.

The court indicated that “the Medical Marijuana Act does not preclude the trial court from making relevant findings concerning the effect of marijuana use whether medical or recreational and to the contrary the Medical Marijuana Act expressly reaffirms using and analyzing the 16 factors as a controlling determination of a child’s best interest.”

Based on this decision, the Medical Marijuana Act does not require the court to ignore a parent’s marijuana use, but instead requires the court to apply the 16 factors under Pennsylvania custody law, to determine how a parent’s legal use of any controlled substance impacts his or her ability to care for and parent the child.

It is important to note as the court stated “the Medical Marijuana Act prohibits the fact finder from penalizing a parent simply for utilizing medical marijuana.” Instead, the court is required to look at the 16 custody factors to determine what is in the child’s best interest. 

In this case, based on two days of testimony, the court found that it was not in the child’s best interest to have unsupervised visits with Father and refused to remove the requirement of clean hair follicle tests before Father could exercise unsupervised physical custody with his son.  

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