Can You Lose Custody of Your Child for Smoking Weed?

A man blowing a smoke cloud out of his mouth

How Marijuana Usage Can Affect Child Custody

The question is more difficult than just a simple yes or no. While marijuana is being legalized in different forms in many states around the United States, the use of pot is still illegal in Texas. This can make the question much more complicated than you might think at first. For example, if you go to Colorado (where smoking pot is legal), and you smoke pot while you are there, then you come back to Texas and fail a drug test, you could be charged with a crime and a judge could possibly take custody of your children away from you because you are found to have drugs in your system—where you were when the drugs got into your system won’t matter to the judge.

The formal name for what is commonly called a custody case is called a “Suit Affecting-Parent Child Relationship” in the Texas Family Code. In addition to the time each parent spends with the children, the judge in a case involving children assigns certain rights and duties to each parent. One of the rights that the judge assigns to a parent is who has the right to determine (or set) the children’s residency for such purposes as where they go to school. In the practical sense, the parent who has the right to determine the children’s residency has what most people commonly call “custody.”

Why Smoking Weed Affects Custody

In addition to being illegal in Texas, smoking weed can affect child custody because a judge will decide how your usage affects your child. It's important to know that it's almost impossible to argue that marijuana usage doesn't affect your ability to parent, even if you're using it to treat a medical condition or want to prove that it's not as dangerous as other illegal or controlled substances. 

During a custody case involving marijuana usage, a judge will take into consideration:

  • How often you smoke or ingest in front of your child
  • The age of your child
  • How your usage affects your child

The bottom line is that a judge will determine if your usage results in harm to your child. For example, you can argue that you only smoke or ingest weed after you child has gone to sleep. However, because weed can dull the senses, at judge will take into consideration the fact that you won't be able to react as quickly should something happen involving your child's safety. Additionally, your child could potentially get into the marijuana and ingest it, which the judge will consider a major safety risk.  

Judges Have a Great Deal of Discretion in Texas

Some Texas judges will require you to have supervised visitation with your children if you are found to be actively using pot or if you fail a drug test. Other judges, while not ignoring the law, simply don’t see using pot as much worse than alcohol. However, most judges, especially in Denton, Collin, and the other more conservative counties in Texas, lean toward to ordering supervised visitation if a parent is shown to have been smoking pot.

If you have been given supervised visitation, then you will likely not have the right to set the residency of your children. So, if effect, you will lose custody. This is still an issue in Texas (and Texas will probably be the 51st state to pass the legalization of marijuana legalization). Texas has a lot of conservative judges. If you are in a custody battle or if you think might get into custody litigation, then using pot is not going to help your case.

What if Both Parents Have a History of Smoking Marijuana?

Again, it really depends on your particular judge. In the not too distant past, if a judge found out that both parents had a history of smoking marijuana that judge would have reported both parents to Children’s Protective Services. Judges may be a little more lenient today, but smoking pot is still an illegal act under Texas law. If you have two parents that are in front of a judge arguing about the right to set residency or custody of the children and both of them are throwing stones at each other by saying, “Well, he uses pot,” “Well, she uses pot,” that’s a case that should have been settled outside of court because the court’s decision is may not make either party happy.

The bottom line in Texas today is that if you are in a custody fight with your spouse or ex-spouse, the best thing is to abstain from using marijuana. Being a good parent and being actively involved in your child’s life should be worth giving up the use of something that could cost you that relationship.

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