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Marijuana use and child custody

In the past several years there has been significant discussion throughout the United States about the legalization of marijuana. In 1996, California was the first state to legalize the use of medical marijuana, since 20 more states have followed suit, including: Alaska, Arizona, Colorado, Connecticut, Washington DC, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington State1. In a bold move, last year, Colorado became the first state to legalize the recreational use of marijuana2.

However, notably, Indiana is absent from the list. Also, bear in mind, possession and use of marijuana is still illegal under the federal code3.

With all the changes in the perceptions of marijuana usage, either medically, or recreationally, the issue of how same affects children of marijuana using parents, and a parent’s ability to properly care for his or her child.

A recent case in Indiana, regarding the termination of parental rights raised the issue of marijuana usage as a basis for terminating a parent’s rights. In In the Matter of the Termination of the Parent-Child Relationship of S.L. & D.L., the Mother stated that marijuana was a “‘friend, family member, a way of life.”4 Mother also argued, among other things, on appeal that her marijuana usage is not a sufficient reason to terminate her parental rights. Mother substantiated her argument by relying on the changing societal norms in America today regarding the use of marijuana, claiming that “‘there are many people in the United States that agree’” with Mother’s marijuana usage and the lack of harm it poses to her children. The Court of Appeals did not disagree with Mother about the changing attitude towards marijuana usage; however, noted that neither recreational, nor medicinal, marijuana usage is legal in Indiana.

Recently a Michigan couple, where medical marijuana is legal, had their child removed from their home because they grew and used medicinal marijuana5. After much heartache and stress, the child was eventually returned. However, this serves as an example of the potential pitfalls of possessing and using marijuana when caring for your child(ren), as even in a state where medicinal possession and use is legal, same still opens the door for Child Protective Services to investigate. In Indiana, where marijuana usage of any kind is illegal, the risks are even higher.

While the attitudes towards marijuana are changing in America, it is a slow progression, and parents must be aware of the laws, biases, and attitudes in their own communities when making a decision to use marijuana to avoid the unintended consequences that may arise, especially as it relates to child custody.

We hope that this blog post has been helpful in understanding how marijuana usage could affect custody of your children in Indiana. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.


  1. https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
  2. https://usnews.nbcnews.com/_news/2013/11/05/21319011-colorado-votes-to-tax-legal-marijuana
  3. 21 U.S.C. § 841
  4. In the Matter of the Termination of the Parent-Child Relationship of S.L. & D.L., __ N.E.2d __ (Ind.Ct.App.2013)
  5. https://www.usatoday.com/story/news/nation/2013/10/25/medical-marijuana-using-parents-get-baby-back/3202373/
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