Buzz Kill - Pot is Legal In New Jersey, But You Can Still Lose Your Kids


After a 2020 statewide referendum and subsequent changes in the law, New Jersey has decriminalized “regulated marijuana” that is prescribed for medical uses and the use and possession of up to 6 ounces of non-medical marijuana and 17 grams of hashish for people over 21 years of age. In an age where the medical usage of marijuana has been, by and large, accepted as legitimate by most adults, New Jersey continues to be steps ahead of other states in its marijuana law. It is still a crime in New Jersey to drive under the influence of marijuana and sell it, but if you’re 21, it’s perfectly legal to use it on your property and to carry it in your car. Suddenly, “On the Way to Cape May,” just took on a whole new meaning!

One might automatically think now that smoking pot or hashish is no longer considered a black mark by the courts when the question of child custody or termination of your parental rights is at stake. That would be incorrect, however, as recently seen in the reported New Jersey Appeals Court decision in NJ Division of Child Protection and Permanency vs. D.H., and T.W.; and J.K. and K.M. In that case, a set of parents lost their children when the Superior Court determined that their parental rights should be terminated, and the children were given to foster parents. 

The facts of the case are not hazy. The parents, in this case, admitted they both smoked pot regularly while caring for their school-aged child. They argued, however, that since the 2020 referendum and the new state laws, they could not have their pot use held against them when the state agency wanted to take their kids away. The good news for the parents was that the Court agreed with them on that point but terminated their parental rights anyway – and for good reason.   

It seems the Court, while stating clearly that New Jersey has never “historically treated” smoking pot as a be-all-end-all reason for taking someone’s children away, found that expert testimony and an examination of the parents’ ability to care for the child when using marijuana (and other reasons) was relevant. The court found that this reasoning was in line with prior case law, notwithstanding any effect of the new laws decriminalizing marijuana usage. This was clearly a “bad trip” for the parents. 

One can imagine that this decision can be relevant both in states where recreational usage has been decriminalized and where it has not. In Pennsylvania, for instance, (as of August 11, 2021) only medical marijuana is legal if prescribed with a 30-day supply. You are not allowed to smoke it unless you have a medical marijuana card. Also, in certain municipalities across Pennsylvania, recreational usage has been decriminalized such that prosecution and enforcement may no longer be the priority of law enforcement. Oh, you also aren’t allowed to grow it in Pennsylvania or the “Garden State” either. You may, however, still plant all the Jersey Tomatoes you can eat, whether this satisfies “the munchies” or not . . . exhale.

Now, as Snoop Dog might say, “back to the lecture at hand.” So, what happens in a case, say in Pennsylvania, with the same facts as the New Jersey case or in a normal child custody matter where the court is not being asked to take kids away but to simply choose one parent over the other in a child custody dispute? Would a Pennsylvania court automatically find that if you “partake” you don’t get to be a parent? Unlikely. It seems that the case law, decriminalization laws or not, will focus on your ability to parent, the best interests of the child, and how you fit into already well-established statutory factors and case law standards that have always been used to determine your ability to be a parent – just like what was wisely done by the New Jersey Court.

So, while I’m sure that the likes of Cheech and Chong and all the hipsters at High Times Magazine might consider this a major “buzz kill,” the holding in the New Jersey case is well in line with established jurisprudence and can still live in the same world where responsible marijuana decriminalization laws will be the NORM(L).

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