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When Missouri voters four years ago passed a constitutional amendment to allow for medical marijuana use, family court scenarios and protections for patients didn’t factor much into the debate.
But lawyers say that parents involved in custody disputes and other legal issues can face judgment and criticism over their use of cannabis for medical purposes.
Now, as advocates continue their push for Missouri voters to approve full legalization of recreational cannabis in November, parental rights are receiving more consideration.
A proposal known as LegalMO 2022 would open Missouri’s medical marijuana market to adults for recreational use, but would also address a number of social reforms related to the state’s cannabis law.
LegalMO 2022 would prohibit courts from ordering parents to stop using medical marijuana in order to complete a family court program.
It would also prohibit a parent’s status as a medical patient from being used to restrict custodial or parental rights. Adoption, custody or visitation rights would also be protected for medical patients.
How cases are decided in MO
Family court cases are decided without a jury, so a judge can decide a case unilaterally.
And, despite steps toward legalization, the overarching presumption within state agencies and family courts is still that marijuana negatively impacts parenting, according to Kansas City family law attorney Laurie Snell, who wrote the proposed change to state law.
“When that first got put into law, sadly, it didn’t change the practice of family court or the presumptions against marijuana use, even if the parents were now certified,” Snell said. “The biases and negative presumptions about use were just so strong, so long-standing, they just didn’t change much.”
Snell told The Beacon about a ruling in one case in which a judge said, “not sure how courts in Missouri will resolve the issue of marijuana in the state, but use doesn’t help convince me that a parent can take care of a child.”
Snell said that addressing similar biases is part of her role as a family attorney.
“So it’s still a lot of educating and slowly shifting away from the judge being able to assert their biases with respect to this,” she said. “It’s less accepted now, the longer that medical marijuana is legal.”
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Parents are rarely involved in family court cases solely because of disputes about marijuana use, Snell added. Usually marijuana issues are a piece in a larger scenario.
A 2020 review published by the University of Missouri School of Law in Columbia found that nationwide precedent in similar cases “indicate that qualified parents may continue their use of medical marijuana” if they do so within the parameters of state law and don’t endanger their children.
“This is an issue. This has been an issue nationwide,” said William Dolphin, who manages publications at Americans for Safe Access, a national advocacy group. “Some states have done a much better job of building explicit protections than others, but it really is a function of continuing the stigma. Sadly, custody battles are where all too often couples are looking for anything and everything to use against each other.”
For medical marijuana users, Dolphin added, “their primary concern is being functional. They want to be able to fulfill their roles in life. Somebody who has medical necessity, we look at that person differently than somebody who’s electing to do it. However, the relative safety profile is the same.”
Missouri’s lack of court protections is typical
Missouri is one of a handful of states that passed a relatively sweeping approval of medical marijuana in recent years, but that does not include family court protections for parents. According to the MU School of Law review, only 10 states (Arizona, Delaware, Hawaii, Illinois, Maine, Michigan, Minnesota, New Hampshire, New York and Washington) have “statutory provisions in place to specifically protect qualified parents.”
“Ultimately, Missouri law gives judges wide discretion, leading to a very subjective analysis and, consequently, subjective decisions,” the review stated.
Dolphin echoed that sentiment.
“We have a lot of regulatory and discretionary things left to officials. They can muck up a situation pretty good if they want to,” he said. “Lawmaking is part of that. Also, it is often a case-by-case situation where you’re relying on the person who’s sitting behind the bench for a determination.”
The Missouri Court of Appeals for the Eastern District ruled in 2016 that the use of marijuana by a parent was not grounds for termination of parental rights if the use did not constitute a “chemical dependency,” but the ruling came before the state changed its medical law.
Snell added that Missourians in the job market and other situations can be subject to similar kinds of scrutiny for using cannabis.
“Without a doubt, parents, employees, people who are exposed to housing systems, job systems, family protection systems, those are the ones that are going to need to have protections in our state law,” she said.
Snell worries that current views of marijuana use from the courts will negatively impact more people once adult-use legalization makes it to Missouri.
“It’s going to be the poor parents who may not have any other support,” she said. “For one thing, the affluent folks don’t end up at family court, but when they do … they figure out how to deal with the issue. They have support, they have housing, they have things that can reduce their stress so that they can deal with it.”
Snell added, “So when adult use comes out, it is just going to be a new ballgame because it’s just really an uneven playing field.”
Missouri legislators have introduced bills addressing a parent’s rights to use medical marijuana. Sen. Barbara Washington, D-Kansas City, has introduced a bill the past three legislative sessions to write protections into place, but the bill has yet to receive a full committee hearing. A similar bill was introduced in the House last session by Rep. Ashley Aune, D-Kansas City.