Cassity B. Gies

Almost three years after passing State Question 788 legalizing medical marijuana, Oklahoma struggles to manage the competing interests surrounding a legal concept colored with controversial opinions, long-standing prejudices, and discriminatory undertones that linger in the air every bit as noticeable as the smell of marijuana.

Far from a settled issue, the debate surrounding the medicinal value of the marijuana plant carries hundreds of years of societal and legal baggage, complicating the implementation of Oklahoma’s newest industry.

Our family law practice handles medicinal marijuana issues on a weekly basis now. The impact of holding a medical marijuana card varies according to every situation, and multiple factors affect the extent that a patient card or commercial business license can complicate a custody decision.

Judges’ attitudes towards medical marijuana vary. Some attribute its uses to the likes of any other legal prescription. Stricter judicial stances oppose its use by any person providing care for children, regardless of prescription. Despite the anti-discrimination protections in 63 O.S. 42(D) that expressly aim to protect patients in custody decisions, marijuana consumption during these early years of implementing its legality can disadvantage a client who comes up against judicial disfavor.

I have heard judges openly warn attorneys from the bench that, regardless of 63 O.S. 42(D), any consumption of marijuana by a parent is enough to presume the party is parenting under the influence, and therefore endangering the child. While this may seem to cut directly against 63 O.S. 42D, judges are ultimately charged with determining the best interests of children, and the deference awarded to their judicial determination provides wide latitude.

From a lawyer’s perspective, crafting a cannabis custody case necessitates understanding more than just the Oklahoma Medical Marijuana Authority regulations, something that remarkably gets glanced over by attorneys declining to learn this nuance of the law. Representation requires recognizing cultural complications and structuring a case with persuasive authority and some basic knowledge of the industry.

As soon as a prospective client shares that they or opposing party hold a medicinal marijuana license, attorneys should recognize this complication and advise their client of the additional work that could likely accompany their case. With the Oklahoma cannabis industry blazing ahead into what many people consider a 21st-century land rush, the accompanying fallout affecting family law should not be taken lightly.

Cassity B. Gies practices family law at Phillips Murrah P.C.