Cannabis and Custody

Arizona Medical Marijuana Patients Guide to Family and Dependency Courts & Law

BY ALLISON STEIN

Custodial and parental rights fundamentally impact every household. The Arizona Department of Child Safety’s (DCS) Facebook page it states that 600 children are in need of foster care in any given month. Those are children DCS has chosen to remove from parents for a variety of reasons, including parental cannabis use.

With numbers like that, it’s no wonder medical marijuana patients are worried about their legal rights as parents.  After all, cannabis medicines are not recognized by the FDA and is technically illegal, a “Schedule One Narcotic.” Likewise, parents going through the family court system, especially during messy divorces, also must question their legal footing in court.

This article hopes to provide medical marijuana parent-patients with guidelines to parental rights in Arizona. With the assistance of attorney Sonia Martinez, who specializes in custodial rights in both Family and Dependency Court, as well as the vice president of the Arizona Cannabis Bar Association (ACBA).

The ACBA is a non-profit organization comprised of volunteer attorneys who work to advance the “ethical practice of cannabis-related law, through education and networking.” ACBA’s stated goal is to “weave” cannabis into every facet of law.

Arizona state law (ARS § 36-2813(D)) states:

“No person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the person’s behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.” 

Other states that have medical marijuana programs have similar language that sounds like it should protect patient-parent rights, but that is not always the case. The statute says that as long as there is no sign of “an unreasonable danger” to the safety of the child, that being a medical marijuana cardholder is not a “presumption” of “neglect”. The key words that have an ominous, unsettling feeling are “unreasonable danger,” because there is nothing in the law defining what exactly that is.

This means it’s up to the courts to decide and some judges might have varying opinions as to what they see as being an “unreasonable danger.” This facet of law has not been argued in court as much as others and there are few case precedents to go from. But it should be simple. Of course, as every patient-parent know, things are rarely simple.

Basic Patient-Parent Advice

Until the law itself starts setting a precedent, there are a few things Sonia recommends for medical marijuana patients that are parents to do:

  • Possess or cultivate as little marijuana as your condition requires. (even if it’s more cost effective to purchase in bulk or larger quantities)
  • Leave your marijuana at home when going to your child’s school, and don’t possess it when chaperoning a school field trip.
  • Driving under the influence is just as illegal as it’s always been, so don’t medicate and drive. (DUI with kids in the car is considered an aggravated DUI with greater potential penalties.)
  • Don’t smoke marijuana in any public place.
  • Don’t smoke in your child’s presence.
  • Consider medicating after your child is in bed or when you will not interact with him or her for several hours.
  • Keep all marijuana in a safe, child-proof location out of plain sight.
  • Clearly label any marijuana food products as medicinal and keep them far away from any children’s food.
  • Don’t sell product to anyone or give it to anyone who is not authorized to have it.

If your child is old enough to understand, specifically explain to them that the marijuana is medicine. Unfortunately, this can go both ways. Martinez notes sometimes a judge will see a child’s knowledge as “an unreasonable danger”.

The DCS Referral Process

For parents it’s critical to understand the two ways reports are made to DCS. One is the DCS hotline. When a call is received from the DCS hotline, it begins a process known as “a referral.”

According to the DCS handbook, when a referral is made, a DCS intake specialist will attempt to establish the following information from the hotline call:

  • Does the suspected conduct constitute abuse or neglect?
  • Is the suspected victim of the conduct under eighteen years of age?
  • Is the suspected victim of the conduct a resident of or present in this state?
  • Is the person suspected of committing the abuse or neglect the parent, guardian, or custodian of the victim or an adult member of the victim’s household?
  • Is the identity or current location of the child victim, the child victim’s family, or the person suspected of abuse or neglect is known or can be reasonably ascertained?
  • The suspected abuse or neglect involves criminal conduct, even if the communication does not result in the preparation of a Report for investigation;
  • The suspected abuse or neglect occurred within the last three years; and there is information or indication that a child is being currently abused or neglected.

 Electronic Referrals

The other type of report is called an Electronic Referral. This report is initiated by a professional and the state is mandated to follow up, under ARS 13-3620:

  1. Any physician, physician’s assistant, optometrist, dentist, osteopath, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient.
  2. Any peace officer, child welfare investigator, child safety worker, member of the clergy, priest or Christian Science practitioner. The parent, stepparent or guardian of the minor.  School personnel, domestic violence victim advocates or sexual assault victim advocates who develop the reasonable belief in the course of their employment.
  3. Any other person who has responsibility for the care or treatment of the minor.

If the child’s situation is a “non-emergency” concerning child abuse or neglect, the report can be made in an online submission. The mandated professional starting the referral has requirements, like those listed above for the hotline.

As it reads in summary, the requirements for starting a referral include:

  • ARS 13-3620 – Duty to report abuse, physical injury, neglect and denial or deprivation of medical or surgical care or nourishment of minors and things of this nature. Title 13 in Arizona is all the laws pertaining to the criminal code.

(Meaning that it is a crime to fail to report. A person who violates this section is guilty of a class 1 misdemeanor, except if the failure to report involves a report-able offense, the person is guilty of a class 6 felony.)

Parents should also be aware of the legal definition of neglect according to Arizona. It is not as clearly defined as one would think.

  • ARS 8-201 25. “Neglect” or “neglected” means: (a) The inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child’s health or welfare, except if the inability of a parent, guardian or custodian to provide services to meet the needs of a child with a disability or chronic illness is solely the result of the unavailability of reasonable services. (b) Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found, or equipment is possessed by any person for the purposes of manufacturing a dangerous drug as defined in section 13-3401. (c) A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in section 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional. This subdivision does not expand a health professional’s duty to report neglect based on prenatal exposure to a drug or substance listed in section 13-3401 beyond the requirements prescribed pursuant to section 13-3620, subsection E.

The determination by the health professional shall be based on one or more of the following:

  • Clinical indicators in the prenatal period including maternal and newborn presentation.
  • History of substance use or abuse.
  • Medical history.
  • Results of a toxicology or other laboratory test on the mother or the newborn infant.

(d) Diagnosis by a health professional of an infant under one year of age with clinical findings consistent with fetal alcohol syndrome or fetal alcohol effect.

(Cannabis use while pregnant is a delicate topic. It is a separate subject worth devoting a separate article.)

The Central Registry

Once DCS referral process starts, a case investigator is assigned, and information is collected. Contact is made with the parent/s. Martinez mentioned that, usually, as long as other illegal drugs were not involved and the parents in question are legal medical marijuana card holders, cases usually end in the parents’ favor.

Sonia also points out how important it is for parents to be aware of the Central Registry. The Central Registry is “confidential list” that catalogs people that have had open DCS cases. It is crucial to appeal this decision because it will prohibit you from ever obtaining a fingerprint clearance card.

A fingerprint clearance card is needed to work in the cannabis industry. First DCS will send out a letter stating that there was a “finding against you.” If you do not contest that “finding,” in about a year you will receive a letter from DCS, entering you to the Central Registry. Once that happens there are not many avenues to take with an optimistic outcome.

Don’t Do Anything “Negligent”

Parent or not, here are a few more things Martinez wants you to know:

  • Know your employer’s drug-testing policy and act accordingly. Employers do not need to accommodate your use of medical marijuana. You may even be denied unemployment benefits.
  • Get rid of your guns. The feds can prosecute medical marijuana patients and caregivers who possess firearms.
  • Don’t use medical marijuana if you have a probation or parole condition that prohibits marijuana use or requires drug testing. Be on the safe side or hire a knowledgeable excellent attorney to challenge the condition.
  • If you are a tenant, know if your landlord prohibits smoking or growing medical marijuana in your residence. It should be explicitly written in the lease.
  • Don’t do anything “negligent” with marijuana in your system.
  • Obey all other state laws pertaining to use and possession.
  • Keep notes about the precautions you have taken so that you are prepared to prove your carefulness to protective services or a court if asked.

A strong recommendation to everyone when it comes to calling the DCS referral hotline and starting the process of allowing the state into people’s homes and possibly destroying a family forever … please do not misuse this already burdened system.

This system is for children’s safety, not squabbles between neighbors, not for feuding friends and family and not for making cheap shots during a separation.

Cannabis is not just a medical frontier, but a legal one as well.  Just as when new studies are released old ones become irrelevant, new case findings and new laws replace the old.

At times it seems that every question answered leads to yet another question. When these questions involve our health, our families, our lives, and our overall general freedom it’s important to know your rights.

Allison Stein writes for Arizona Cannabis Monthly and Arizona NORML.

  • DOMM LIFE BLOOM

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