In ruling on an issue pertaining to custody of a minor child, the court must analyze twelve (12) factors. These twelve (12) factors are dictated by statute and designed to help the court determine what sort of custody arrangement would be in the best interests of the minor child at issue. Factor (f) requires the court to evaluate “[t]he moral fitness of the parties involved.” See MCL 722.23(f). Historically, courts have considered a party’s history of alcohol or drug use as an indicator of moral fitness. See McIntosh v. McIntosh, 2828 Mich App 471, 480 (2009). In such regard, often times in contested custody disputes, marijuana usage by one party is offered as evidence of immorality.

In 2018, Michigan became the first Mid-western state to legalize recreational marijuana for adults 21 years of age or older. See MCL 33.27952. Since then, the commercialization of marijuana has evolved into a full-fledged industry. Additionally, the use of marijuana has become generally accepted by voters (the 2018 initiative to legalize recreational use passed with 56% of the vote). With the decriminalization of marijuana and its increased acceptance by society, courts have struggled with precisely how marijuana use should impact a custody determination under factor (f) or if marijuana use should have an impact at all.

A recent Michigan Court of Appeals case, In Re Ott, helps resolve the tension between factor (f) and the decriminalization of marijuana usage. In that case, the mother tested positive for THC (the psychoactive ingredient in marijuana). Thereafter, the trial court suspended the mother’s parenting time until she was able to provide three (3) consecutive clean drug tests. The Michigan Court of Appeals overruled the trial court’s finding. In explaining this decision, the Michigan Court of Appeals stated that marijuana use alone does not justify suspension of parenting time. Instead, there must be some evidence presented that demonstrates that a party’s use of marijuana caused a threat of physical or mental harm to the minor child at issue in the case. Accordingly, evidence of marijuana usage, absent a showing the minor child’s wellbeing was placed at risk, is insufficient to deem a parent morally unfit.

In Re Ott is beneficial to trial courts in Michigan that are faced with deciding what weight to give to evidence of marijuana usage by a parent. The case is also informative to parents that may wish to offer evidence of marijuana usage against the other parent as a tactic in their case. It may not be worth the lasting damage to the parties’ co-parent relationship.

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