In Wisconsin, as in many states across the U.S., marijuana use is a complex issue when it comes to child custody and placement. With evolving state laws and shifting public attitudes toward marijuana, it’s crucial for parents to understand how their use of this substance can impact custody and placement decisions. Marijuana remains illegal for recreational and medical use in Wisconsin. Many neighboring states now permit medical and recreational marijuana use. These changes have affected the treatment of this issue when addressing custody and placement disputes.

Legal Status of Marijuana in Wisconsin

As of 2024, THC marijuana use remains illegal in Wisconsin. However, the state has passed laws allowing limited medical use of cannabidiol (CBD) products, a non-psychoactive compound found in marijuana, for certain medical conditions. CBD oil can be purchased throughout Wisconsin. Possession of marijuana for any other reason, even in small amounts, can lead to criminal charges.

This distinction plays a significant role in custody and placement battles, as courts consider both the legal context of marijuana use and the safety of the child. Unlike in states where recreational or medical marijuana use is more broadly legalized, Wisconsin’s courts have historically taken a stricter stance. However, some courts have moved toward treating marijuana use more like alcohol use. That is, some courts will consider the effects of alleged marijuana use on the parent’s ability to care for their child and not necessarily assume that their ability is affected.

The “Best Interests of the Child” Standard and Application to Marijuana Issues

When determining custody and placement arrangements, Wisconsin courts use the “best interests of the child” standard. This standard prioritizes the child’s safety, well-being, and overall welfare above all else. Marijuana use, whether legal or illegal, is scrutinized under this lens.

The court considers factors such as:

– Whether marijuana use occurs in the presence of the child.

– The frequency and extent of marijuana use.

– The impact of marijuana use on the parent’s ability to care for the child.

– The legality of marijuana use (i.e., medical use with a valid prescription vs. recreational or illegal use).

If a parent’s marijuana use impairs their ability to provide a safe and stable environment, it can and will negatively impact their chances of securing custody or placement. Even in cases of CBD oil use, the court may weigh how the substance affects the parent’s functioning and whether it compromises their ability to care for the child.

While marijuana use may be recognized by the court as a negative factor for custody and placement, parents should be warned that courts are wary of parents using the issue to “cry wolf” and falsely portray the other parent as somehow unfit to parent. Courts do not look upon such reports favorably to the reporting parent, and parents should be cautioned before reporting marijuana use as a factor for custody and placement if such use has been historically occurring or even a shared event between the parents in the past.

Marijuana use can significantly impact custody and placement decisions. While the legal landscape surrounding marijuana continues to evolve, courts remain focused on protecting the best interests of the child. Legal advice from a family law attorney familiar with Wisconsin’s specific laws and custody guidelines is essential for navigating these complex issues. If you have any concerns about custody and placement, contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to speak with one of our attorneys regarding your specific situation.

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