Almost three years after State Question 788 was passed to legalize medical marijuana, Oklahoma is struggling to resolve competing interests around a legal conception of controversial opinions, longstanding prejudice, and discriminatory undertones that lingers in the air as much as it does the smell of marijuana.
Far from being an established issue, the debate about the medicinal value of the marijuana plant has dragged on hundreds of years of social and legal baggage, making Oklahoma’s newest industries difficult to adopt.
Our family law practice now deals with medical marijuana issues on a weekly basis. The effects of owning a medical marijuana card vary by situation, and several factors influence the extent to which a patient card or commercial business license can make a custody decision difficult.
Judges’ attitudes towards medical marijuana vary. Some attribute its use like any other statute. Stricter legal regulations prevent use by anyone caring for children, regardless of prescription. Despite the anti-discrimination protection in 63 OS 42 (D), which is specifically aimed at protecting patients in custody decisions, marijuana use in these early years of enforcing its legality can put a customer at a disadvantage who encounters judicial disapproval.
I have heard judges bank lawyers openly warning that regardless of 63 OS 42 (D), the use of marijuana by a parent is sufficient to suggest that the party is under the influence of parenthood and therefore endangers the child. While this may directly violate 63 OS 42D, the ultimate task of judges is to determine the best interests of children and the deference that is given to their judicial decision leaves a lot of leeway.
From a attorney’s point of view, creating a cannabis custody case requires more than just understanding the Oklahoma Medical Marijuana Authority regulations, something that is remarkably overlooked by attorneys who refuse to learn this nuance of the law. Representation requires recognizing cultural complications and structuring a case with persuasiveness and some basic knowledge of the industry.
Once a prospect announces that he or the counterparty holds a medical marijuana license, attorneys should recognize this complication and alert their clients of the extra work that could likely go on their case. As the Oklahoma cannabis industry plunges into a 21st century land frenzy, the family law implications it brings should not be taken lightly.
Cassity B. Gies practices family law at Phillips Murrah PC
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