Marijuana Discrimination in Family Courts: How the Use of Recreational Marijuana Can Affect Child Custody in Illinois

In custody (“allocation of parental responsibilities”) disputes, a crucial aspect that family courts consider is the child’s best interests including the health and safety of the child. Illinois courts also take into account the parents or guardians’ use of drugs or alcohol when determining whether to restrict parental responsibilities.

In January 2020, Illinois became the 11th state to legalize the use of recreational marijuana with the enactment of the Cannabis Regulation and Tax Act. The legalization of recreational marijuana has prompted a question for families: can courts cite a parent’s marijuana use as justification to restrict parental rights during a custody proceeding?

Recreational Marijuana Usage + Family Law: What the Law Says 

The Cannabis Regulation and Tax Act contains a nondiscrimination provision stating that the use of marijuana may not be used as the sole or primary basis for any action by a family court or child welfare agency for an adverse finding or restriction of any right or privilege.

Under this section, courts are not allowed to discriminate against parents in a custody proceeding based on their use of marijuana. Therefore, parents are free to recreationally use marijuana.

Other Marijuana and Family Law Impacts

Despite the nondiscrimination provision, marijuana can still be used as a factor in determining custody if a person’s “actions in relation” to marijuana endangers the safety of the child.

This means parents must ensure that their use of marijuana does not create an unsafe environment or endanger their child in any way, including but not limited to, negligent supervision, failure to pick the children up for activities/from school or leaving marijuana out for the children to ingest.

For questions regarding recreational marijuana involved in child custody proceedings, reach out to the family law attorneys at Kogut & Wilson.


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