Yes, marijuana use can hurt your custody case in Indiana, but use alone rarely decides it. Marijuana is still illegal in Indiana, and judges look at how use affects your parenting and your child’s safety. Indiana courts have also held that marijuana use, without more, does not prove a child is seriously endangered.
Many parents ask whether smoking weed can cost them custody, especially now that marijuana is legal in several nearby states. In Indiana the answer depends on the facts. A judge will care far less about whether you have ever used marijuana than about whether your use puts your child at risk. This guide explains how Indiana courts look at marijuana in custody cases and in DCS cases, and what you can do to protect your relationship with your child.
Is marijuana legal in Indiana?
No. Indiana has not legalized marijuana for recreational or medical use. Under IC 35-48-4-11, knowingly possessing marijuana is a Class B misdemeanor. It becomes a Class A misdemeanor or a Level 6 felony in some cases involving prior drug convictions or larger amounts.
That matters for parents in two ways. First, use that is legal in Michigan or Illinois is still illegal once you are back in Indiana. Second, a medical marijuana card from another state does not make use lawful here. A judge may see illegal drug use as a sign of poor judgment, even when it is occasional.
How does marijuana use impact a child custody case?
Indiana custody decisions turn on the best interests of the child. Under IC 31-17-2-8, the court must consider all relevant factors, and there is no presumption favoring either parent. The listed factors include the following.
- The age and sex of the child
- The wishes of each parent
- The wishes of the child, with more weight given once the child is at least 14
- The child’s relationship with parents, siblings and others who significantly affect the child
- The child’s adjustment to home, school and community
- The mental and physical health of all individuals involved
- Evidence of a pattern of domestic or family violence
Marijuana use usually comes in under the health factor and under the general question of whether a parent can provide safe, stable care. It is one piece of a larger picture.
What do judges look at when marijuana comes up?
Judges tend to ask practical questions.
- How often do you use? Daily or heavy use is viewed more seriously than rare use.
- Do you use while caring for your child? Being impaired while you are the only adult responsible for a child is a major concern.
- Can your child get to it? Edibles, vapes or paraphernalia left within reach raise real safety issues.
- Is your child exposed to smoke? Smoking in the home or car with a child present is likely to count against you.
- Are there other problems? Marijuana use combined with other drug use, alcohol abuse, criminal charges or untreated mental health issues can weigh heavily.
- Has it affected your parenting? Missed school, missed exchanges or lapses in supervision matter more than the drug itself.
Can CPS take your child for smoking weed?
In Indiana, child protective services is handled by the Department of Child Services, or DCS. DCS can open an assessment if it receives a report involving drug use. To have a child found to be a Child in Need of Services, or CHINS, DCS must prove more than drug use.
Under IC 31-34-1-1, DCS generally must show that the child’s physical or mental condition is seriously impaired or seriously endangered because of a parent’s neglect, and that the child needs care the family is unlikely to provide without court involvement.
The Indiana Court of Appeals has applied this rule to marijuana. In Ad.M. v. Indiana Department of Child Services, 103 N.E.3d 709 (Ind. Ct. App. 2018), the court held that “evidence of one parent’s use of marijuana and evidence that marijuana ha[d] been found in the family home, without more, does not demonstrate that a child has been seriously endangered.” Later Indiana appellate decisions have continued to cite that holding.
That does not mean DCS will never act. A positive drug screen at birth, a child who swallows an edible, or use combined with neglect or violence can all lead to removal and court involvement.
What can happen to custody if a judge has concerns?
When a judge believes marijuana use is affecting a child’s welfare, the possible orders range widely.
- Drug testing for one or both parents
- An order not to use marijuana before or during parenting time
- Substance abuse evaluation or treatment
- A change in legal or physical custody
- Restricted or supervised parenting time
Parenting time is protected by statute. Under IC 31-17-4-2, a court may not restrict a parent’s parenting time unless it finds that parenting time might endanger the child’s physical health or significantly impair the child’s emotional development. Termination of parental rights is a separate and much more serious proceeding, and it is rare that marijuana use alone leads there.
Can marijuana use be a reason to modify custody?
It can. Under IC 31-17-2-21, a court may modify custody only if the change is in the child’s best interests and there has been a substantial change in one or more of the best interest factors. A new pattern of heavy use, or an incident that put a child in danger, may support a request to modify. A parent who has addressed past use may also point to that change as a reason not to modify.
How can you protect your custody case?
- Stop using, at least during the case. Clean drug screens are strong evidence.
- Never use around your child or before parenting time.
- Store nothing in the home. Remove marijuana, edibles and paraphernalia completely.
- Be honest. Judges respond better to a parent who admits past use and shows a plan than to one whose story falls apart on cross examination.
- Consider an evaluation. A substance use assessment that finds no disorder, or proof of completed treatment, can help.
- Focus on your parenting. School records, medical care and a steady routine show the court what your child’s life looks like with you.
If the other parent is the one using marijuana, keep a calm record of specific facts, such as dates, what you observed and how your child was affected. General accusations carry little weight.
Frequently Asked Questions
Can you lose custody of your child for smoking weed in Indiana?
You can, but it is unlikely to happen because of marijuana use alone. Indiana judges decide custody based on the child’s best interests, and they focus on whether your use affects your parenting or your child’s safety. Heavy use, use while caring for your child, or use combined with other problems carries far more risk.
Can CPS take your kids for smoking weed in Indiana?
DCS can investigate a report involving marijuana, but Indiana appellate courts have held that a parent’s marijuana use, without more, does not prove a child is seriously endangered. DCS generally needs evidence that the use actually put the child at risk. Exposure, neglect or a child getting access to marijuana changes the picture.
Does legal marijuana in other states matter in an Indiana custody case?
Not much. Marijuana remains illegal in Indiana, so use that was legal elsewhere can still be treated as illegal drug use here. A medical card from another state does not make use lawful in Indiana.
Will a judge order drug testing in my custody case?
A judge may order drug testing when one parent raises credible concerns about substance use. Testing can be ordered for either parent or both. Clean results over time can help a parent show that marijuana is not a risk to the child.
What factors do judges consider about marijuana use in custody cases?
Judges look at how often a parent uses, whether the parent uses while caring for the child, whether the child can access marijuana or is exposed to smoke, and whether other issues are present. These questions fit within the best interest factors in IC 31-17-2-8, especially the mental and physical health of everyone involved.
This blog was written by attorneys at Ciyou & Associates, P.C.
