By: Lindsay Hanifan Childs, Esquire
*As published in Pennsylvania Family Lawyer, Volume 38, Issue No. 2. at page 97.
There had been signs that a statewide change would be coming to Pennsylvania regarding laws on marijuana use and possession. In addition to increased lobbying and public support for the legalization of marijuana, local governments had been laying the groundwork for such legislation. On October 1, 2014, possession of less than one ounce of marijuana was decriminalized in Philadelphia by ordinance signed by Mayor Michael Nutter. That ordinance replaced criminal penalties with a civil fine of $25 for such possession. Next, on December 22, 2015, Pittsburgh’s Mayor, Bill Peduto, signed a law that reduced the penalties for possession of less than 30 grams of marijuana. That law provides for a civil fine of up to $100, instead of a misdemeanor criminal charge.
Then, on April 17, 2016, Pennsylvania Governor Tom Wolf signed the Medical Marijuana Act (Senate Bill 3) into law, which went into effect on May 17, 2016 (“the Act”). Under the Act, patients with serious medical conditions that are certified by a specially trained physician can obtain marijuana for therapeutic or palliative purposes. To obtain an identification card showing that he or she is certified to obtain medical marijuana, the individual must prove that the marijuana was prescribed by a qualified physician during an in-person visit, and that he or she is being cared for by that physician on an ongoing basis for a serious medical condition. The certifying physician must be licensed and qualified to treat a serious medical condition, must complete a four-hour course, and must apply to be included in the newly formed registry. The law provides a set list of “serious medical conditions,” which includes cancer, HIV/AIDS, multiple sclerosis, post-traumatic stress disorder and epilepsy. Patients can only obtain the marijuana as a pill, oil, topical form, tincture, liquid, or non-whole plant form, and it cannot be sold in edible form or smoked. The prescription must be limited to a 30-day supply.
At first glance, it may seem that the legalization of medical marijuana will not have much of an impact on custody cases, especially because the law specifically states that the courts cannot consider, by itself, the fact that a party to a custody case is certified to use medical marijuana when making a custody determination. But due to the effects of marijuana use, even when in conformity with the Act, there could still be ramifications in many custody cases. In addition to concerns about a child’s potential access to the marijuana, issues could arise regarding the failure to adequately supervise or provide for the care of a child while under the influence of marijuana.
Although the Act legalizes marijuana for medical use, it also contemplates the potential risks of such use. In fact, the medical marijuana that is sold must include on its label a warning that its use could impair the ability to drive or operate heavy machinery. The label must also show what percentage of the marijuana consists of Cannabidiol (CBD), which has desired antioxidant and anti-inflammatory properties, versus Tetrahydrocannabinol (THC), which has more psychoactive properties and leads to more negative side effects. And there is clearly the potential for such negative side effects to be exacerbated if the prescription is abused and not used as directed.
But because the court cannot reduce a party’s custody time or deny all custody time simply because he or she is registered to use medical marijuana, the court may instead look to impose conditions on the use of medical marijuana. For instance, a custody order might provide that medical marijuana shall not be used immediately prior to or during the parties’ custodial period, similar to how some custody orders state that alcohol shall not be consumed in excess during a parties’ custodial period. But that raises the question of whether it is fair or even ethical to limit someone’s use of a legal and medically valid prescription. Other possibilities would be to restrict the use of medical marijuana by a party to a custody case when he or she is going to be driving while a child is in the car, or requiring regular drug tests to ensure that the amount of marijuana being consumed is consistent with the prescription. Thus, in many ways, it appears that the use of medical marijuana, when obtained and used legally, should be treated in the same manner as the use of other prescription medications that can cause impairment, such as opiates or benzodiazepines.
Another potential ramification in custody cases is the prescribing of medical marijuana to children, which is contemplated under the Act. In particular, one of the other enumerated “serious medical conditions” under the Act is autism, which has become an increasingly more common diagnosis in children. If parents share legal custody, then they will need to decide jointly whether or not their child should use medical marijuana as a treatment, and if they cannot agree, the court would need to decide. Again, it seems that this issue should be treated in the same manner as legal custody disputes over a child’s use of other prescription medications, such as Adderall and Ritalin. The Act states that a patient under the age of 18 shall designate a caregiver, who is given their own identification card that authorizes that individual to obtain medical marijuana on behalf of the patient, and permits a patient to designate up to two caregivers at any one time. Thus, both parents (or another person sharing custody of a child) would be able to obtain and deliver the medical marijuana to the child.
The Criminal Record/Abuse History Verification (“Verification”) that all parties to a custody case must submit to the court may need to be revised to reflect changes brought about by the Act. Although the use of medical marijuana in conformance with the Act does not violate the Controlled Substances, Drug, Device and Cosmetic Act, there are new crimes that have been created that involve medical marijuana. These include criminal diversion of medical marijuana (giving medical marijuana to someone not legally permitted to receive it); criminal retention of medical marijuana (possessing more medical marijuana than the amount that is permitted); falsification of identification cards; and adulteration of medical marijuana. In addition, driving under the influence of drugs or alcohol is one of the enumerated crimes on the Verification, and the Act specifies that even individuals who are registered to use medical marijuana cannot operate or drive a motor vehicle with more than 10 nanograms of THC in their system.
In addition to impacting custody cases, the Act has the potential to affect child and spousal support cases as well. As a substance prescribed by a physician, medical marijuana will presumably be treated as a medical expense by the court. And because insurers are not required by the Act to reimburse any costs involved with a patients’ use of medical marijuana, the cost to a patient to obtain medical marijuana could be high. Thus, there could be disputes about the contribution to the cost of medical marijuana as an unreimbursed medical expense.
Furthermore, the Act could lead to more disputes about earning capacities if a parent or spouse is fired from their job or demoted because of marijuana use. Under the Act, an employer is not allowed to discharge or otherwise discriminate against an employee on the basis of his or her “status as an individual who is certified to use medical marijuana.” However, employers are not required to make accommodations for the use of medical marijuana at the worksite and are not prohibited from disciplining an employee who is under the influence of medical marijuana at work if such influence causes the employee’s conduct to fall below “the standard of care normally accepted for that position.” Therefore, with the increased availability of marijuana to some people, and the increased acceptance of its use, it is possible that more individuals will go to work while under the influence of marijuana, and end up getting fired or demoted for it. The other party in a support case would then have an argument that because the marijuana-user willfully went to work while impaired, he or she should be assigned with an earning capacity equal to his or her previous income, since it was a “voluntary reduction of income.”
Overall, because the Act provides for the legal possession and use of medical marijuana under very specific circumstances, and explicitly prohibits the discrimination against individuals who are certified to use medical marijuana in custody and employment situations, it should not have a direct impact on custody or support cases. However, because of the potential for negative side effects or abuse that could lead to the failure to provide a safe environment for children or the failure to perform one’s job safely and satisfactorily, practitioners should be aware that there will still likely be an indirect impact of the Act on our cases.
