How Marijuana Usage Can Affect Child Custody in Texas

The impact of marijuana use on child custody in Texas is far from a simple yes-or-no issue. While marijuana is being legalized in various forms across many U.S. states, Texas law still classifies marijuana possession and use as a criminal offense. That legal distinction can make a significant difference when child custody is involved.

Marijuana Use and Texas Law

Even if a parent legally consumes marijuana in a state like Colorado, returning to Texas with THC in their system can have serious consequences. A failed drug test, even if the usage occurred where it was legal, could result in criminal charges and negatively affect a custody case. Texas courts do not consider where the marijuana was used—only that it was used.

In Texas, child custody cases are formally referred to as Suits Affecting the Parent-Child Relationship (SAPCR) under the Texas Family Code. These cases determine how time is shared between parents and who holds critical decision-making rights—such as the right to determine the child’s primary residence.

Can Smoking Weed Make You Lose Custody?

Marijuana use can influence a judge’s decision in a custody case, but it does not automatically result in losing custody. Under Texas law, parental marijuana use alone is not sufficient grounds for terminating parental rights. However, if there is evidence that marijuana use has significantly harmed the child’s physical or emotional health, a judge may limit custody or visitation rights.

When evaluating marijuana use, Texas judges typically consider:

How frequently does the parent use marijuana
Whether usage occurs in the presence of the child
The age and needs of the child
Any evidence of harm, neglect, or impairment to the child

For example, even if a parent claims only to use marijuana after the child is asleep, a judge may find that the parent's dulled senses could pose a risk in an emergency. Additionally, the possibility of a child accessing marijuana products is a serious safety concern in the eyes of the court.

Judicial Discretion in Texas

Texas judges have broad discretion in custody matters. Some may order supervised visitation if a parent is found to be using marijuana or fails a drug test. In more conservative counties like Denton or Collin, judges are more likely to take a hardline stance, viewing marijuana use as incompatible with responsible parenting.

Losing the ability to determine a child’s residence—a key parental right—often means losing what most people understand as "custody."

What If Both Parents Use Marijuana?

If both parents have a history of marijuana use, the situation becomes even more complicated. In the past, judges may have involved Child Protective Services. While that may happen less often today, marijuana remains illegal in Texas, and both parents could still face consequences.

When both parents accuse each other of marijuana use in court, the judge must weigh which environment is safer and more stable for the child. These are often tricky cases where neither parent may come out ahead, and such disputes are often better settled outside of court.

The Best Approach During a Custody Dispute

If you're involved in a custody battle in Texas—or anticipate one—abstaining from marijuana use is the safest option. Even occasional or out-of-state usage can be used against you in court. Committing to your child’s well-being by avoiding potentially harmful or illegal behavior may be crucial to preserving parental rights.

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Don’t let a marijuana-related issue jeopardize your parenting rights. Contact the Law Offices of David S. Bouschor for guidance tailored to your case!

Can You Lose Custody of Your Child for Smoking Weed?