It’s been more than five years since it became legal for adults aged 21 and older to possess, purchase and consume limited amounts of cannabis in Illinois. In that time, usage appears to have become more common, or at least more readily disclosed, and it is increasingly becoming an issue in divorce cases involving children.
Unlike cocaine or other “hard drugs,” cannabis or marijuana carries less societal stigma and is often perceived as less harmful. The perception has even led to the rise of the term “California sober,” which is used to describe a lifestyle free of drugs and alcohol except for marijuana. In some families, one or both parents are casual users, and it is a non-issue. But in some cases, marijuana usage became a source of contention between the parties before the divorce even began because one parent saw the other parent’s use as excessive and/or interfering with that parent’s ability to take care of the children.
Perhaps marijuana usage renders that parent unable to drive after using, and therefore, unable to help with driving children to and from activities. A parent may sleep heavily after using and cannot reliably respond to an emergency in the middle of the night. Of course, these types of issues can arise when a parent uses any kind of drug — including necessary prescription drugs — which can make it challenging to ferret out in a divorce whether a parent’s marijuana use is, or is not, a real problem. However, marijuana products are sometimes made and packaged to look like gummy candy, which can be appealing to a young child who stumbles upon them, creating a risk of accidental consumption.
Drug usage of any kind often complicates a divorce. When children are involved, it can create an additional set of concerns that need to be addressed and also provide ammunition for one party against the other. In today’s evolving landscape, where “California sober” often blurs traditional definitions of sobriety, understanding how marijuana use is perceived and monitored in divorce cases involving children is very important. This knowledge can help an individual make informed decisions about whether — or how much — to use. Also, in cases where marijuana use really is a problem, understanding how courts perceive and address the issue is crucial in formulating an effective plan that keeps children safe and protects the family’s privacy.
I am sometimes asked by clients who use marijuana: Should I stop altogether? Usually, my advice is to stop while the divorce case is ongoing, even if I do not believe my client’s marijuana use is problematic. This is because prolonged abstinence can diffuse accusations of marijuana abuse by the other parent and, in contentious litigation, it is a good idea for a parent to minimize or eliminate any potential vulnerabilities, even if they are greatly exaggerated by the other parent.
Additionally, unlike alcohol consumption, which can be closely monitored with tools like Soberlink, which provide real-time breathalyzer testing and results reporting, there currently is no easy, portable way to test a person’s THC level on the spot. While such a testing device exists for employment purposes, experts are hopeful that eventually it will become available to consumers and family courts. This inability to test and report THC levels in real-time can make it difficult to monitor a parent’s use and make certain it is not interfering with his or her ability to care for the children. But it can also make it difficult to disprove unfounded accusations of marijuana abuse because it is impossible to prove when the marijuana use occurred and whether it was when a parent was or was not with the children.
Formulating an Effective Plan
If marijuana abuse is a real problem in a divorce case involving children, there are ways to cooperatively and effectively address it while still preserving the family’s privacy — but it requires both parents’ buy-in and some creative problem-solving.
For example, parents can avoid court by negotiating a confidential, self-enforcing letter agreement that prohibits marijuana usage. A letter agreement could spell out how frequently a parent, or both parents, will submit to THC testing and how the results will be reported, as well as how and when a parent who tests positive will still spend time with the children but ensure the children’s safety. In some cases, a letter agreement may contain a term that suspends a parent’s time with the children altogether until that parent comes back into compliance. Where an addiction is actively being treated, confidential letter agreements can also give the non-using parent the ability to speak with the other parent’s rehab facility or doctor about the treatment plan — something that is much harder to access through court. These types of agreements can be utilized in any case involving addiction, not just cases where marijuana use is an issue.
Confidential letter agreements typically are incorporated “by reference only” into a court order, meaning the judge reviews the letter agreement and retains the power to enforce it, but the contents of the letter agreement do not become part of the public court file. Parties to this type of agreement often find themselves in court only when a party violates the agreement and the court needs to enforce it. While that is always an unfortunate circumstance, it minimizes the family’s public exposure because the court only becomes involved later on, in an enforcement capacity, and not in formulating the protocol in the first place. Negotiating and abiding by a confidential letter agreement can also be a productive first step in rebuilding trust between parents in a family that has been traumatized by addiction.
Choosing the Right Attorney
Although cooperative letter agreements offer a practical solution, some parents might still find them difficult to embrace, particularly those dealing with more serious addictions that cannot be controlled. That’s why it’s important to work with a knowledgeable and practical attorney who focuses on accountability and teamwork, looks for solutions outside of court whenever possible and prioritizes maintaining family relationships throughout this difficult process.
This balanced and thoughtful approach can result in more positive outcomes and help families with children handle complicated issues surrounding marijuana use.