In a 3-0 ruling Wednesday, the Second District Court of Appeal in Los Angeles rejected findings by a local child-protective agency that a man who smoked pot four or five times a week for arthritis pain, outside the presence of his infant son, was endangering the child.
There is “no evidence that (the) father has a substance abuse problem,” the court said. “The record shows that Drake (the child) was well cared for. … There was no evidence showing that Drake was exposed to marijuana, drug paraphernalia or even secondhand marijuana smoke.”
The father, identified as Paul M., has kept custody of the now 2-year-old child because the mother has suffered from drug abuse and mental illness, the court said. The ruling reversed a judge’s orders placing Paul M. under the child-protective agency’s supervision and requiring him to take parenting courses and drug counseling and undergo random drug testing.
The ruling illustrates “a growing recognition (of) the legitimate use of medical marijuana in this state and other states,” Lauren Johnson, the father’s lawyer, said Thursday. “We want kids to be safe, but we also want people to get their medicine … as long as children aren’t at risk of harm.”
A county social worker first visited the family in May 2011, when Drake was 9 months old. Paul M. described his marijuana use and the measures he took to protect the child, assigning his adult daughter to watch Drake while the father smoked in the garage.
He testified in court that he waited at least four hours after using marijuana before leaving his job as a concrete mason to pick up Drake from day care. He also said he never drove under the influence of marijuana.
The county agency found that Drake was healthy, but said in a court filing that the father’s marijuana use made him “incapable of providing regular care and supervision of the child.” A county lawyer called “ridiculous” Paul M.’s statement that he was not under the influence of the drug while driving his car or taking care of his son.
But in overturning a Superior Court ruling against the father, the appeals court said the “mere usage of drugs,” including marijuana, is not the same as drug abuse that can affect child custody.
Drug abuse, the court said, must either be diagnosed by a doctor or show up in a person’s behavior, such as absences or poor performance at work or at school, driving under the influence, or “recurrent social or interpersonal problems.” None of that happened in this case, the court said.
For more information on filing for child custody in Los Angeles or Orange County, contact an Orange County divorce lawyer for help.