Proposal 1, substance abuse, and the effect on the best interest factors

Posted by McGinnis ChiappelliAug 30, 20190 Comments

McGinnis Chiappelli, P.C.

On November 6, 2018, Michigan voters approved Proposal 1, creating the Michigan Regulation and Taxation of Marihuana Act (MRTMA). (, 2018) Among other things, this Act delegates responsibility for marijuana licensing, regulation and enforcement to the Michigan Department of Regulatory Affairs (LARA). (, 2018) As of April 30, 2019, the Marijuana Regulatory Agency (MRA) was established via Governor Whitmer's Executive Order 2019-7. (LARA Communications, 2019) Over the next several weeks, the MRA, led by Executive Director Andrew Brisbo, will be implementing new practices to streamline the application process and ensure access to safe marijuana products. (LARA Communications, 2019)

Despite the passage of Proposal 1, there remains uncertainty as to the legality of marijuana use and possession at both the state and federal levels. How will this affect the best interest factors? Specifically, Factor (g).

Evidence of questionable conduct offered in connection with factor (f ) is only relevant when it “necessarily has a significant influence on how one will function as a parent.” Fletcher v. Fletcher, 447 Mich. 871, 887 (1994). Consistent with Fletcher test: the conduct must have some probative value on how one will function as a parent. Id. Isolated criminal acts or criminal behavior remote in time that do not reflect a party's present or future ability to parent are irrelevant. (Mastrangel, 2018) A continuing pattern or recent instances of unlawful behavior, however, may be probative of that party's ability to parent and the risk to the child's well-being associated with that parenting. Id.

The topic of drug use is commonly a hearsay issue in custody and parenting time litigation-parents speculating what the other is exposing the child to while exercising parenting time. To date, substance abuse testing has predominantly focused on the individual parent. However, a relatively new test has made its debut in Michigan: ChildGuard. ChildGuard can assist, where other exposure drug tests fall short. (United States Drug Testing Laboratories, Inc., 2019)

ChildGuard is the only drug test designed to detect passive exposure to drugs in a child by way of a hair sample. (United States Drug Testing Laboratories, Inc., 2019) This non-invasive test sheds invaluable in-sight with regard to the child's environment and can provide evidence of substance use in a child's environment for up to a three-month period prior to testing. Id. The test can be performed on children of all ages and positive results suggest exposure to contact with drug smoke, contact with sweat or sebum (skin oil) of a drug user, contact with the actual drug, or accidental or intentional ingestion of the drug(s). ChildGuard is the first and only test of its kind. Id.

Back to the passage of proposal 1. Though “legal” does that indicate drug use around a child is appropriate? Michigan Court's have long considered alcohol abuse relevant to its inquiry of the best interest factors, and so I assume, that there is no reason to treat marijuana any differently.