How will your involvement with medical marijuana affect your custody case?  The answer is, it depends.  The court will analyze whether it threatens your child’s health, safety or welfare.  If the Judge decides it does, s/he can limit or terminate your custodial rights.  This can trigger interest from the Department of Children and Family Services (“DCFS”) or the District Attorney’s Office.

Some family Judges consider any cannabis involvement a potential danger.  Others are more liberal, and distinguish between legal and illegal conduct.  Even an uninvolved spouse’s parental rights can be at risk, since the failure to remove a child from a “dangerous situation’ can be deemed abusive.

For patients, growers, delivery services, retailers and their spouses who worry that disclosures in family court might come back to haunt them, there is another way: Mediation.

In mediation, a privately hired neutral (often an experienced attorney) helps the parties settle.  The process is generally confidential. There is no transcript of the proceedings, and with limited exceptions, the mediator can’t be compelled to testify about what either side says.  When the parties reach an agreement, the final terms are filed with the court.  But personal matters like cannabis involvement aren’t included in these documents.  So once again, there is no paper trail for the government to review.

Note:  Do not confuse private mediation with the court run version.  California’s judicial website provides the following information about its internal custody mediation system (

  • “In some courts, mediators make “recommendations” about child custody to the judge when the parents do not reach an agreement in mediation. The mediator may include what you say in mediation in the report, which is sent only to the judge, to the other parent, and to his or her lawyer. In other courts, information from the mediation would not be shared with the judge.
  • If a mediator suspects child abuse or has concerns about the physical safety of the children, he or she may need to report this to child protective services or the ”

Another huge benefit:  Private mediation tends to be cheaper and faster than going to court, even in highly contentious cases.  Statistics show that roughly 95% of all cases settle prior to trial.  So, why not try to avoid the huge expenses associated with trial prep up front?  When it is successful mediation can help the parties avoid years of stress, worry, and unnecessary legal bills.

Author – Michael Heicklen, Esq.

Attorney Michael Heicklen has over 20 years of experience as a family law attorney and mediator. He can be reached at (818) 907-7771.