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.