Last week brought us a panel decision of the Superior Court in Humphrey v. Ross, not to be confused with the epic child support battle Humphreys v. DeRoss. The facts are kind of typical. Non marital relationship produces a daughter, P.A.R., in June 2020. The parents split early in 2020 and the acrimony produces a protection from abuse order a couple months later, which is agreed without prejudice and does not include P.A.R. Shortly thereafter mother files a custody case in Lebanon County. As the case evolves, the central issues are father’s anger management and use of marijuana. The case was tried in November and December 2022 and the court heard from an evaluator, Kasey Shienvold, Psy.D.

Dr. Shienvold comes back with a finding that father is not afflicted with any form of “disorder.” He did present a minor or moderate risk to the 30 month old. We don’t get an assessment in the opinion of just what that risk may be. The Court awards joint legal and partial physical to father with a provision that he shall not consume prescribed marijuana for a least six hours before driving a car with the child in it.

Mother appealed, professing the Court had erred by minimizing the testimony related to the marijuana use. The irony here is that mom also had some marijuana experiences and, like her ex boyfriend, she also was prescribed to take Adderall. The Superior Court looked at all of this and found no abuse of discretion in what the trial court had done.

We still see custody litigants who come to seek representation thinking they have the proverbial “ace in the hole” when they relate that the other parent uses marijuana. They often come to initial interviews with “the goods” which is to say “paraphernalia” which they suggest proves that they should have custody and other parent’s custody needs to be supervised.

When the custody gloves come off, litigants tend to disregard the real world in which judges must navigate. Today, marijuana is everywhere. I drive by legal dispensaries, everyday. There are sometimes lines outside. I was chatting with a fellow lawyer last week who was lamenting that the smell of weed is everywhere in Manhattan these days. In 37 states (including New York) recreational use is allowed. In the good old mid-Atlantic, Pennsylvania and Ohio are the hold outs together with the federal government, which still classifies marijuana as a Class 1 drug, possession of which is a crime punishable by a year in prison.

You may not smell it, but marijuana is all over the courthouse in the sense that it affects criminal, family and juvenile cases. But it is also now becoming much like alcohol consumption; accepted until it isn’t. It’s hard for courts to get a handle on where the line is crossed where it will affect a custody decision. It doesn’t mean that marijuana use is irrelevant to child custody proceedings, but it is no longer a red flag in a custody case unless consumption is a demonstrable threat to the children. In this case the court restricted father’s use of prescribed marijuana such that it could not interfere with his driving. Of course, the inevitable response is: how will we know until he is pulled over while high? There is no happy answer to that question.

Humphrey v. Ross  174 MDA 2023  (August 24, 2023)