For generations of New York parents, smoking a joint on the stoop or tucking some weed into a pocket has always come with the risk of not only a criminal charge, but the threat of being reported to child protective services. People of color and families living in poverty have long been the overwhelming majority of those tested for marijuana use, arrested and reported to child welfare agencies.
But at the end of March, New York became the 16th state to legalize recreational cannabis for those ages 21 and older. Unlike most other states that previously enacted such laws, New York included specific language in the Marijuana Regulation and Taxation Act that challenges the assumption that use of the drug is, by itself, evidence of irresponsible parenting. The new law underscores a policy already in place statewide, but not always followed: Parents and guardians cannot be found to have maltreated children simply due to marijuana use, absent a separate finding of harm or risk of harm to children.
Raising the bar for state involvement is important because unnecessary child welfare investigations also hurt families, said Nila Natarajan, an attorney with Brooklyn Defender Services: “More often than not, the harm is the state involvement, and the invasiveness of an investigation and the temporary or long-term separation.”
New York isn’t the only state separating cannabis use from child abuse. In Texas, a bill on the governor’s desk would prohibit removing children from their parents solely based on parental marijuana use. And a recently passed New Mexico law prohibits parents from being denied custody, visitation or parenting time “based solely on whether, when and how often a person uses cannabis without separate evidence of harm” to a child — a protection included in New York’s law as well.
Natarajan said she sees parents’ marijuana use brought up in court nearly every day. While it isn’t typically the primary reason for an allegation of abuse or neglect, child welfare agencies often present cannabis use as a supplemental concern, pressing the judge to question a parent’s competence as a caregiver.
“Marijuana use is used as something to throw into the kitchen sink of allegations that might be made against someone,” said Natarajan. “It’s used to suggest they’re irresponsible, or just a bad person that doesn’t care about their children.”
Lawyers and advocates say claims that parents are using marijuana can often sway judges to prolong supervision of a family, require parents to complete extra services and drug testing, or delay a child’s return home. Now that marijuana is legal, they are anxious to see family courts step back from such policing of parents’ choices.
“Misinformed assumptions and bias have been deeply woven into child welfare and the family regulation system,” said Melissa Moore, who spent the past five years advocating for legalization as the New York state director of the Drug Policy Alliance. “We have to fully retract the claws of the drug war from these systems and take care of the harm that’s been done.”
The nation’s decades-long war on drugs created a powerful stigma against marijuana users, even though there is little scientific evidence to show that its use impairs parenting and leads to child neglect — accusations commonly levelled against parents who are regular users of cocaine, methamphetamines and opiates.
Studies of the short- and long-term impacts of marijuana use during pregnancy have produced conflicting results. A 2018 analysis from the American Academy of Pediatrics noted the difficulty separating the effect of marijuana from tobacco, alcohol or other drugs used by pregnant women. And when examining the impact of prenatal cannabis exposure on older children and adolescents, researchers struggled to control for the other socioeconomic and environmental factors that shape development.
What is known is that the psychoactive molecule THC can be passed to a developing fetus through the placenta, and most doctors and leading medical associations recommend that pregnant women avoid marijuana. Among them is Dr. Kathryn Wells, a University of Colorado professor of pediatrics who leads the Kempe Center for the Prevention and Treatment of Child Abuse and Neglect.
In a presentation to the National Council of Juvenile and Family Court Judges earlier this year, Wells warned that prenatal marijuana exposure has been associated with childhood attention problems and decreased academic ability — particularly among children whose mothers had smoked one or more joints a day. But she too acknowledged that current research leaves much unknown.
“It’s unclear what the long-term impact of prenatal marijuana exposure is going to be on the infant brain,” she said. “We don’t fully understand the long-term impacts. There’s limited studies.”
Still, hospitals — particularly those serving low-income populations — routinely test pregnant mothers and newborns for drugs including marijuana without obtaining consent, then report positive results to child protective services. Following public outcry, New York City’s public hospital system last fall changed its policy to require informed consent prior to drug testing. A bill currently before the state Legislature would extend that requirement to all public and private hospitals statewide.
Meanwhile, parent advocates say courts are too quick to blame a parent’s marijuana use for other concerns — a child’s late arrival to school, dirty clothes or missed doctor’s appointment.
“It’s always assumed that the reason things are happening in a family is because of the use of marijuana,” said Teyora Graves, a parent advocate at the Center for Family Representation, which primarily serves low-income families of color in Manhattan and Queens.
Once, city lawyers even suggested that her client’s marijuana use was preventing her from leaving a relationship mired in domestic violence, overlooking the many known reasons it can be difficult to leave an abusive partner.
And although the National Institute on Drug Abuse has made clear that “the majority of people who use marijuana do not go on to use other, ‘harder’ substances,” Graves said courts often view marijuana use as an indication that a person is likely to abuse other substances, pushing parents to prove otherwise through testing.
The law also provides relief for anyone who is named in the state’s central registry of child maltreatment based solely on the use or possession of marijuana. Such listings typically linger for decades and can be used to disqualify applicants for child care jobs and people seeking to become foster parents — even those offering homes to relatives or close kin. Now, individuals who are the subject of a CPS report based solely on their marijuana use or possession can request that the report be sealed, preventing it from being viewed by a potential employer or turning up in a background check.
With marijuana no longer illegal, advocates for parents expressed hope that its use can be reframed as a personal choice, much like drinking alcohol.
Some parents have enjoyed that privilege for years. White, well-off parents have publicly testified to the calming effects of marijuana, openly participating in groups with names like “Moms for Marijuana.” But Black and Latino parents are often held to a different standard, finding themselves accused of being unfit to raise their children if they use marijuana even occasionally, or simply have it in their home.
“White, privileged parents get paid for highlighting their marijuana use, while Black and brown families get punished and harmed by the family policing system,” said Teresa Marrero, a parent advocate with Rise, a New York City nonprofit that assists parents with child welfare cases.
Marrero said when she tested positive for marijuana while giving birth to her daughter nearly two decades ago, she was barred from taking the infant home until she enrolled in an 18-month drug treatment program meant mainly for users of harder drugs.
Parent advocate Graves recounted similar examples of a double standard that she’s seen in her work on dependency cases: Child welfare officials discouraged a parent of color whose children were in foster care from using medical marijuana as part of her treatment for coping with trauma, while a white mother who admitted to using opioids was allowed to keep her child at home as long as she agreed to enter drug treatment — even though six months went by before she actually enrolled.
“Clients are definitely treated differently depending on their race, where they live, what resources and access they have,” Graves said. “It's not even about who you know, it's what you can make a worker fear that you can do, with your influence and your privilege.”
Elliot Williams, a parent advocate with the New York City-based Center For Human Development & Family Services, recalled a white mother who tested positive for opioids while giving birth. The woman explained that she was “independently wealthy” and could pay for any treatment services on her own, and avoided any court mandates.
“They just let her dictate exactly what she was going to do — the treatment was the polar opposite of what a client on 149th Street would be,” Williams said. “Had that been the Bronx, they would have run to court, removed the children, got an order of protection saying that she was a danger because she was high on drugs when she gave birth — it would have been terrible.”
That kind of “blatant, inexcusable disconnect” ultimately helped advocates win support for cannabis legalization in the New York Legislature, said Moore of the Drug Policy Alliance.
It’s a “horrific experience” having your parenting scrutinized by the courts, Moore said, even if children are never removed or they are returned from foster care within days or weeks. The experience is all the more excruciating if the court determines the child was never actually in danger.
“It makes people question everything about themselves and their parenting,” she said, “and whether they're good at this really fundamental thing about their life.”