How Medical Marijuana Affects Parental Rights in Oklahoma

By Anthony Pellegrino Updated May 18th

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mmj and parental rights in Oklahoma

Are you an Oklahoman thinking about becoming a medical marijuana patient? If you're looking for medical marijuana laws in Oklahoma regarding children in the presence of marijuana, this article will shed some light on the issue.

Medical marijuana laws in Oklahoma regarding children are a common concern in family court. Recreational marijuana users have no child custody protections in the state, but medical marijuana patients do have specific protections. If you need an Oklahoma medical marijuana card, NuggMD's cannabis doctors can provide a face-to-face video evaluation from the comfort of home.

Medical marijuana could very well be perfect for you, but you don't want to jump headfirst just yet. Not until your questions about medical marijuana and child custody in Oklahoma answered. So read on to learn more about Oklahoma marijuana laws and children.

Medical Marijuana and Child Custody in Oklahoma

If you're a parent and need to use cannabis for a medical condition, you should consult with an attorney, and never attempt to illegally use marijuana because recreational drug use and child custody are practically mutually exclusive in Oklahoma, with many counties having incredibly punitive policies.

It's perfectly understandable to consider the implications of medical marijuana and DCFS before becoming an Oklahoma medical marijuana patient if you have children. Drug use by a parent has always been a consideration for family courts when making determinations on visitation rights and child custody. It's natural, then, to ask, "could my Oklahoma medical marijuana card become a problem for me in family court?"

Fortunately, state Question 788 (the bill legalizing medical marijuana) includes specific medical marijuana family court protections for medical marijuana license holders. The law explicitly protects marijuana patients from being denied custody or visitation rights on the sole basis of their having a medical marijuana license. This means that, in Oklahoma, medical marijuana use will not be a consideration for child endangerment and custody rights will not be denied to medical marijuana users if their safe and compliant cannabis use is the only consideration.

What Does Oklahoma's SQ 788 Say About Parental Rights?

So what does the law actually say then? In section 6, in paragraph D, State Question 788 states plainly:

“No medical marijuana license holder may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this law, unless the person’s behavior creates an unreasonable danger to the safety of the minor.”

Oklahoma residents with medical marijuana cards do not have to fear losing custody or visitation rights of their children on the sole basis of their status as a licensed patient. Obtaining an Oklahoma medical card does not change the fact that parents have certain natural rights to their children. However, the State Question itself doesn't define any specific guidelines for awarding custody or visitation rights. When making decisions on which parent is awarded custody, the family courts will still prioritize the best interest of the child above all else.

Although, the law does include an important caveat:

"...unless the person’s behavior creates an unreasonable danger to the safety of the minor."

The courts expect parents to act responsibly with their medical marijuana use. License holders are expected to keep medical marijuana or marijuana products out of plain sight. They must store it properly within adequately labeled containers and in locations where the children cannot access it, just like any other prescribed medication.

Marijuana patients are also expected to use their medical marijuana in proper doses at the proper times. They cannot use marijuana in the direct presence of their children, nor can they use it when they are expected to have an uninhibited ability to parent. They must use marijuana properly and legally.

Oklahoma Marijuana Laws and Children

SQ 788 provides its parental rights protections to any "medical marijuana license holder." This means that medical patients alone are not the only people being protected. Dispensary owners, workers, cultivators, farmers, caregivers, and anyone else with an Oklahoma medical marijuana license is protected under the law. Just like medical patients, their parental rights are protected by SQ 788.

However, none of these protections apply to recreational marijuana users. Marijuana is still illegal for recreational use in the state of Oklahoma. Not only that, but many family attorneys even recommend that their clients request a court-mandated drug test during child-custody cases.

Also, keep in mind that recreational marijuana use can result in a criminal record. While it doesn't automatically disqualify a parent from being able to gain custody, past convictions can definitely present problems for parents. Marijuana crimes are no different, and a judge will consider them when deciding custodial rights.

Does SQ 788 Stop the State From Taking Children Away From MMJ Users?

No, SQ 788 does not prevent the state from taking away custody or visitation rights from medical marijuana patients. It just prevents the state from using a parent's holding of a medical marijuana license as the sole justification for taking the children away. The courts will still make custody determinations based on the best interests of the children and their parents' abilities to provide for their physical and emotional needs.

Oklahoma family courts consider the following factors when examining the best interests of the children:

  • The emotional needs of the children
  • The abilities of both parents to meet said needs
  • The parenting plans of both parents
  • The stability of home and work-life of each parent
  • Each parents' relationship with the children and individual personal history as a parent

In other words, there is nothing in SQ 788 that would stop the courts from making custody determinations against medical marijuana patients if it is in the best interest of the child.

So, for example, if medical marijuana patients are also drug dealers and child custody is being determined by the court, they will likely take away custody of their children. SQ 788's protections will not prevent an Oklahoma judge from presuming the patient is unfit to exercise custody of their child.

Simply put, SQ 788 only stipulates that the possession of a medical marijuana card in of itself is not to be a factor in custody/visitation determinations. However, the same cannot be said of the actual use of said medical marijuana.

Medical Marijuana Must Be Used Responsibly to Prevent Child Custody Problems

As we mentioned earlier, SQ 788's parental protections come with the condition that a medical marijuana patient's behavior does not create an unreasonable danger to the safety of their children. Medical marijuana must be used responsibly at all times. Its irresponsible use can not only lead to custody problems, but can even constitute child endangerment, a felony offense in Oklahoma punishable by up to four years imprisonment.

A parent can be charged with child endangerment under Oklahoma law if they knowingly allow their child to be in a motor vehicle operated by someone under the influence of marijuana, or they, themselves, operate a motor vehicle under the influence of marijuana with their child in the car.

Such a conviction will not be taken lightly by a family court when making a custody determination. It cannot be emphasized enough how important the responsible use of medical marijuana is for determining custody of your child. Even in perfectly responsible cases problems can arise. Claims of neglect can be alleged against marijuana patients, and DHS or the family court could get involved as a result.

What to Do if a Medical Marijuana Patient has a Child Custody Problem?

Ultimately, medical marijuana patients should not rely solely on the protections of SQ 788 when dealing with custody problems. Patients should always consult a family law attorney to fully protect their rights. As we've stated earlier, there are many other potential reasons a family court can presume a medical patient is unfit to exercise their custody or visitation rights. Whether that be driving while high, past convictions, child endangerment issues, or marijuana use inhibiting the ability to parent, your child custody/visitation rights are too important to forgo hiring a legal professional.

This is why it is crucial to hire a family law attorney to best help you navigate child custody cases, protect your parental rights, and ensure that your medical marijuana use is presented to the courts fairly with any underlying concerns being addressed properly.

And remember, none of the medical marijuana parent protections in Oklahoma apply to recreational marijuana users, so if you need to use medical marijuana, you should get your evaluation from an Oklahoma medical marijuana doctor as soon as possible. NuggMD proudly serves all areas of Oklahoma via telemedicine and can see patients the same day with no appointment required.

The information in this article and any included images or charts are for educational purposes only. This information is neither a substitute for, nor does it replace, professional legal advice or medical advice, diagnosis, or treatment. If you have any concerns or questions about laws, regulations, or your health, you should always consult with an attorney, physician or other licensed professional.

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