Wednesday, December 18, 2019

custody - medical marijuana

H.R. and C.A.R. v. C.P. and J.M. – Pa. Superior – reported, precedential – December 18, 2019

Held:  The Medical Marijuana Act does not preclude the trial court from making relevant findings concerning the effect of marijuana use, whether medical or recreational, on a parent’s ability to care for his or her child. Indeed, contrary to Father’s assertion, the Medical Marijuana Act expressly reaffirms § 5328(a) as the controlling mechanism for determining a child’s best interest. See 35 P.S. § 10231.2103(c) (“In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.”). 

That statutory framework explicitly requires the fact-finder to consider not only a parent’s history of drug and alcohol use but also their mental health and physical conditions. Thus, rather than requiring the court to ignore Father’s marijuana use, the Medical Marijuana Act obligated the trial court to contemplate Father’s physical condition, i.e. the nerve pain he complains of in his right wrist, and his reliance upon medication to subdue that pain. 

By way of comparison, OxyContin®, Vicodin®, codeine, and morphine are legal substances when prescribed by a physician; however, it is beyond cavil that, prior to making a custody determination, § 5328(a) (14) and (15) mandates that a trial court consider how a parent’s legal use of any of these substances impacts his or her child’s best interest. That is precisely the analysis that the trial court performed in the case at bar. 

>