In the context of a custody case, is marijuana use by a parent considered to be a major factor, since it has been legalized in a number of states?
The answer is yes, but to varying degrees. Marijuana possession is still illegal in the State of New York, though possession of very small amounts has been decriminalized. That means that actual possession of a very small amount of marijuana will not result in a criminal record.
However, the other party to the custody case and/or his/her attorney, will most certainly argue that marijuana use, while a parent is caring for children, would reflect extremely poor judgment. Additionally, being high on marijuana could result in the criminal charge of driving while under the influence of drugs.
It should be noted of course, that a court’s consideration of marijuana use will be based upon the context, that is, the amount and duration, and what if any drugs the other spouse may be using. For example, infrequent marijuana use by one parent would be considered far less important than regular cocaine use by the other parent.