Pennsylvania uses the standard “the best interests of the child” when determining custody issues. What happens if the best interest of the child breaks the law? Such is the case in Georgia where parents of a 15 year old boy suffering from epilepsy resorted to marijuana to treat his seizures. Their argument is compelling: their son suffers from debilitating seizures that have not responded to traditional treatment and medical help is forty-five minutes away from them. They feared his seizures would eventually kill him.

Having seemingly exhausted their medical options (including a legal form of marijuana oil in a capsule), they began having their son smoke marijuana. His seizures stopped. However, the state of Georgia’s child welfare agency, acting on a tip, investigated the family and removed the young man from his parents’ care in April. Having gone nearly 70 days without a seizure, on the day he was removed from his home he was hospitalized for a severe seizure. He is in a group home and reports did not mention whether he continued to have seizures, but presumably he has and those facts will emerge later this month when a hearing is held.

Pennsylvania passed medical marijuana legislation in 2016, including provisions that address the use by minors as administrated by designated caregivers. That said, marijuana is still a Schedule I drug under the Controlled Substances Act with state and federal criminal ramifications. The Georgia case highlights a possibility that still exists in Pennsylvania where conflicting state and federal laws can result in criminal charges.

How would the court react to the “legal use” of marijuana by a custodial parent or an objection by a parent to the use by a minor child? Pennsylvania updated their Health and Safety Statute (§10231.2013) to include a prohibition against including medical marijuana as a consideration in a custody proceeding, but nothing was done to amend the custody code to make a similar restriction under the custody factors.

Most likely, the courts of Pennsylvania will continue to apply the custody factors to medical marijuana in a manner comparable to prescribed pain medication with an emphasis as to whether it is being abused or affecting the custodial parent’s ability to care for the child. The use by a child would be dictated by legal custody considerations and medical necessity not unlike any other treatment. Despite evolving laws in this area, there will continue to be a tension between state application and federal law. While that may not change any time soon, addressing those disparities at the state level should improve as time passes.

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