Medical Marijuana Law’s Effects on Child Custody

June 12, 2019


New Mexico’s medical cannabis program underwent major changes during the 2019 legislative session with SB 406 being passed and signed by the Governor.  Overall, the bill expands patient protections for the use of medical marijuana, pursuant to the Lynn and Erin Compassionate Use Act,  NMSA 1978 § 26-2B-1 et seq.

Importantly, the bill partly settles the contentious debate regarding the rights of medical marijuana patients in removal, dependency, and child custody cases.  Under the new additions to this law, the use of medical marijuana cannot be the basis for state intervention for child abuse or neglect.  Further, medical cannabis patient status, alone, cannot be used against a parent in custodial proceedings.  That is, a patient cannot be denied custody or visitation privileges, and there can be no presumption of neglect or child endangerment, for the use of marijuana as allowed by the Act.  It’s important to keep in mind however, that the new law does not protect patients consuming medical marijuana incongruent to the provisions of the Act.  For example, a patient’s use of medical marijuana while driving (as prohibited under the Act) can be divulged in child custody proceedings and would be properly considered by the adjudicatory authority in such instances.

The provisions take effect June 14, 2019, and will be codified under the Family Services Act.  NMSA 1978 § 32A-3A-1 et seq.

Parents needing assistance in child custody proceedings under the new law may contact family law lawyer Maria Montoya Chavez at 505-883-2500.

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