Smokin’ and Tokin’ but Idaho’s Not Jokin’: How Marijuana Use Impacts Child Custody Disputes in Idaho

It is no secret: Idaho is one of the last states in the Union that has not passed legislation allowing legal cannabis use in any form. Perhaps ironically, it is surrounded by states that have pioneered the legalization of both medicinal and recreational use. A short 45-minute drive west of Boise lands you in Ontario, Oregon, where a giant plastic joint sits atop a small building with a drive-thru not dissimilar to a small coffee shop. Without addressing the potential criminal liability of transporting marijuana products and using them in Idaho, how do Idaho judges deal with cannabis use by parents who are engaged in a custody dispute? Here is a short blog post to tell you about our experience with this issue.

First, Idaho judges are required to take cannabis use into consideration when making custody decisions. Simply put, it is the law that cannabis use in all forms is prohibited in the state of Idaho. If a parent is using cannabis, the court will likely inquire as to the extent of the use and whether it is affecting their parenting in some way. Second, even though cannabis is illegal, it will very likely be treated with less scrutiny than the use of other “hard” substances, such as heroin or cocaine. This returns to the first point: while cannabis is taken into consideration by a judge when making a custody decision, judges will want to know if the cannabis use is affecting their parenting or their children in any negative or harmful way. For example, if the children are leaving for school and smelling of marijuana, this would absolutely be scrutinized by a judge. A judge will harshly scrutinize a party who may be neglecting their parental obligations and duties because of their marijuana use.

Ultimately, while cannabis use may be questioned by a judge, the impact of the fact that a parent uses marijuana depends entirely on the circumstances of the use, and whether the use is harmfully affecting the parenting, the children, or both. If the cannabis is used by a parent on occasion to assist them with sleep, it is likely that this fact would not be weighed heavily by a judge when making a custody determination, so long as the parent can awaken easily if an emergency occurs, and if there are no other harmful consequences that have occurred while using the cannabis for this purpose.

The issue of cannabis use typically arises in custody disputes where one parent accuses the other of being an avid drug user and/or that they are unfit to parent because of said use. In this instance, the party making the accusation may move for a court-ordered drug test, which may be a urine, blood, or hair-follicle test. Occasionally a judge may unilaterally order that one or both parties submit to a drug test if there are allegations presented to the court that involve drug use. I have found that hair follicle exams are the most common because hair follicle tests have the longest detection period, meaning they can reveal drug use spanning much further back in time than the other two types of tests.

You may be thinking this: hair follicle tests cannot tell the court or the parties that the person was, for example, legally engaged in cannabis use in a state that has legalized marijuana in some form. The test simply reveals whether the person has used cannabis within a certain time period, usually stemming back at least three months. In our experience, Idaho judges are less concerned with the fact that the person tested positive for marijuana; they are primarily concerned with whether the cannabis use has affected parenting or the children in some negative way.

If you are a parent who engages in cannabis use in Idaho and you think you might be involved in a custody battle soon, be conscious of how the cannabis use may affect your parenting or affect your child or children. As it stands, cannabis consumption is a criminal act within the state of Idaho that can impact the judge’s view of a parent’s character.