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Marijuana use and child custody in South Carolina

One of my oldest and dearest friends was awarded custody of his two children and kept custody until they emancipated.  Not only was he openly using marijuana during that time, he was also openly growing it and selling it.

He did not live in South Carolina.

Along with exposing children to non-marital sexual relationships, nowhere is the generational and cultural gap between South Carolina parents and the typical family court judge greater than it is with tolerance, even acceptance, of marijuana use.  For those in their 20’s and 30’s–the age of many parents involved in family court custody proceedings–marijuana use is common.  But South Carolina’s family court judges treat it as verboten; indeed any marijuana use creates a presumption of parental unfitness.

Marijuana-using parents in South Carolina custody cases will often argue that marijuana is no more dangerous than alcohol.  This view is shared by President Barack Obama, whose 1995 memoir, Dreams of My Father, acknowledged not simply marijuana use as a young adult but also cocaine use.  South Carolina family courts do not care.  S.C. Code § 63-7-1660(F)(1)(a), authorizes the removal of a newborn from a mother’s custody if “a blood or urine test of the child at birth or a blood or urine test of the mother at birth shows the presence of any amount of a controlled substance or a metabolite of a controlled substance unless the presence of the substance or the metabolite is the result of medical treatment administered to the mother of the infant or the infant.”  S.C. Code § 63-7-620 allows “a law enforcement officer may take emergency protective custody of a child without the consent of the child’s parents, guardians, or others exercising temporary or permanent control over the child if … alcohol or drug abuse if known or evident at the time of the initial contact.”

As of the date of this blog twenty states and the District of Columbia have legalized medicinal marijuana.  Colorado and Washington state have legalized marijuana for recreational use.  In 1980 South Carolina actually passed a statute, S.C. Code § 44-53-650,  authorizing the director of the Department of Health and Environmental Control to obtain and distribute, without charge, marijuana to “certified patients.”  For two reasons this statute has never been implemented.  First, it requires the director to “obtain marijuana through whatever means he deems most appropriate consistent with federal law” and federal law continues to make marijuana a schedule one substance that cannot be used for medical treatment.  Second, the general assembly has never provided the director funding to obtain marijuana.  The South Carolina legislature is currently considering various bills that would authorize some medical uses of marijuana.

A decade ago South Carolina family court judges would not only uniformly remove custody from parent who was using marijuana, they would not even allow unsupervised visitation.  Anecdotally, their viewpoint appears to have relaxed a little–but not much.  One hears reports of judges not changing custody or allowing visitation to continue unsupervised if the parent was using marijuana in the recent past but can demonstrate that the parent is not currently using.

One also hears that when a parent lives in a state that authorizes medicinal marijuana, and when that parent is using marijuana as prescribed, South Carolina family court judges are not making such usage a factor in custody determinations.  The apparent rationale is that it is marijuana’s illegality, and not its psychotropic effects, that make its use antithetical to custody.  This belies the fact that numerous other crimes do not appear to be considered absolute bars to an award of custody.  Only the crimes that South Carolina family court judges consider both immoral and related to parenting ability–primarily crimes related to sexual activity and substance abuse–appear to create such rigorous scrutiny.

Meanwhile every year South Carolina parents lose custody or find their visitation restricted due to their use of a drug that remains illegal but is commonly accepted within their peer group.  At least in South Carolina, the popular culture has simply changed faster than the legal culture.

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