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 complex 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 initially think.

For example, suppose you go to Colorado (where smoking is legal) and smoke pot there.

In that case, you come back to Texas and fail a drug test, you could be charged with a crime, and a judge could 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 “Suit Affecting-Parent Child Relationship” in the Texas Family Code.

In addition to each parent's time with the children, the judge assigns certain rights and duties to each parent in a case involving children. One of the rights that the judge gives 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 with the right to determine the children’s residence has what most people commonly call “custody.”

Can Smoking Weed Make You Lose Custody of Your Child in Texas

Smoking weed can affect child custody in Texas because a judge will decide how your usage affects your child. However, a new Texas law states that parental marijuana use alone cannot be the basis for termination.

The department must have evidence that the parent's heavy cannabis use has caused significant impairment to the child's physical or mental health or emotional development.

During a child 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 harms your child. For example, you can argue that you only smoke or ingest weed after your child sleeps. However, because weed can dull the senses, a judge will consider that you won't be able to react as quickly should something happen involving your child's safety.

Additionally, your child could get into the marijuana and ingest it, which the judge will consider a significant 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, 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 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 affected, 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 think you might get into custody litigation, then using pot will not help your case.

What if Both Parents Have a History of Smoking Marijuana?

Again, it 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 slightly more lenient today, but Texas law still makes smoking pot illegal.

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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