California stands at a crossroads in American jurisprudence, where liberalization of state cannabis laws has converged with family law issues. Since the passage of Proposition 215 in 1996, which legalized medical marijuana, and Proposition 64 in 2016, which legalized recreational cannabis for adults 21 and over, the Golden State has led the nation in cannabis policy reform. Yet as cannabis has moved from the shadows into the mainstream—generating billions in tax revenue and supporting thousands of businesses—family courts continue to grapple with fundamental questions about how marijuana use affects custody decisions, property division, child welfare investigations, and support calculations.
For family law practitioners and parents navigating California’s legal landscape, understanding the intersection of cannabis law and family law has never been more critical. This article examines the evolving legal framework governing cannabis issues in family court proceedings, drawing on case law, legislative developments, empirical research, and practical considerations that affect families throughout California.
The Custody Conundrum: When Cannabis Use Becomes a Contested Issue
California family courts operate under a foundational principle codified in Family Code Section 3020: the child’s best interest governs all custody and visitation determinations. Within this framework, Family Code Section 3011 directs courts to consider “the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent” when determining what serves the child’s best interest [1] [3].
The legalization of cannabis has created interpretive challenges around this statutory language. If cannabis is legal for adults in California, can its use still constitute grounds for limiting custody or visitation rights? The answer, courts have consistently held, depends not on the mere fact of use but on whether that use creates a substantial risk of harm to the child.
The Drake M. Framework: Establishing the Nexus Requirement
The seminal California case on this issue remains In re Drake M. (2012) 211 Cal.App.4th 754 [2] [6] [8] [10]. In this dependency case, the Los Angeles County Department of Children and Family Services filed a petition alleging that the father’s use of medical marijuana rendered him “incapable of providing regular care and supervision” of his nine-month-old son Drake. The evidence showed that the father used marijuana three to five times per week for arthritis pain, smoked only in a detached garage while Drake was supervised by others, kept his marijuana locked in a toolbox, and waited at least four hours between using marijuana and caring for Drake [8] [10].
The Court of Appeal reversed the trial court’s jurisdictional findings, establishing a critical principle that continues to guide California family courts today. The court held that DCFS failed to establish that the father was a “substance abuser” under the applicable definition or that his marijuana use created a substantial risk of serious physical harm to Drake. “Without evidence that such usage has caused serious physical harm or illness or places a child at substantial risk of incurring serious physical harm or illness,” the court concluded, marijuana use alone cannot support dependency jurisdiction [2] [8].
Drake M. established what family law practitioners now call the “nexus requirement”—there must be a specific, articulable connection between cannabis use and harm to the child or substantial risk of harm. Mere use, even regular use, does not suffice [6] [7] [9].
The Alcohol Analogy: Parallel Treatment of Legal Substances
Both practitioners and courts frequently analogize cannabis use to alcohol consumption when analyzing custody disputes. As one family law treatise explains, “the courts will typically treat marijuana usage similarly to alcohol consumption,” focusing on whether use is excessive, occurs in front of children, happens when the parent has physical custody, or involves driving under the influence [1] [3] [5].
This parallel treatment reflects California’s broader legislative policy. Assembly Bill 2595, signed into law in 2022, requires the California Department of Social Services to ensure that “when a social worker is investigating an alleged case of child abuse or neglect, a parent’s or guardian’s use or possession of cannabis is treated in the same manner as a parent’s or guardian’s use or possession of alcohol and legally prescribed medication” [21] [46] [47] [48].
Practical Factors Courts Consider
While the nexus requirement provides the legal standard, California courts examine numerous practical factors when evaluating whether cannabis use affects custody or visitation rights:
Timing and Frequency of Use: Courts distinguish between occasional use and habitual use. More critically, they examine whether a parent uses cannabis while actively caring for children or ensures adequate supervision by a sober adult [8] [10].
Storage and Accessibility: Courts expect parents to store cannabis products securely, out of children’s reach. This includes not only marijuana itself but also paraphernalia and cannabis-infused edibles, which can be particularly attractive and dangerous to children [3] [4] [41].
Secondhand Smoke Exposure: The California Health and Safety Code prohibits smoking cannabis in the presence of minor children [3] [19]. Research has shown that indoor cannabis smoke elevates particulate matter levels and may be associated with adverse health outcomes in children, including respiratory issues, ear infections, and bronchitis [19].
Impairment While Parenting: Evidence that a parent is impaired while caring for children—whether from cannabis, alcohol, or other substances—constitutes strong grounds for limiting custody or requiring supervised visitation [1] [3] [5]. Unlike alcohol, cannabis testing presents challenges because THC metabolites can remain detectable in urine for weeks after use, meaning a positive drug test does not necessarily indicate current impairment [28] [30] [34].
Driving Under the Influence: Operating a vehicle while impaired by cannabis, particularly with children in the car, results in enhanced criminal penalties and can significantly impact custody determinations. California Vehicle Code Section 23572 imposes mandatory jail enhancements for DUI with a child under 14 in the vehicle [42] [43] [44]. A DUI with child endangerment often triggers both criminal prosecution and family court intervention, potentially resulting in supervised visitation or temporary loss of custody [32] [35].
Drug Testing in Custody Cases
Family Code Section 3041.5 authorizes courts to order drug testing as a condition of custody or visitation, but only upon specific evidentiary showings [17] [40] [45]. Before ordering testing, the court must find evidence that the parent engages in “habitual, frequent, or continual illegal use of controlled substances or habitual or continual abuse of alcohol.”
The statute requires a preponderance of evidence before testing can be ordered and contains important procedural safeguards designed to protect parental privacy rights while serving children’s safety interests [45]. Courts cannot order suspicionless drug testing; there must be reasonable cause based on objective evidence [18] [45].
Protecting Children from Cannabis Exposure: The Child Welfare Perspective
While custody disputes between parents form one category of cannabis-related family law issues, child welfare proceedings represent another critical intersection. When concerns arise about child abuse or neglect potentially connected to parental cannabis use, California’s dependency system may become involved.
AB 2595 and the Cannabis Parity Mandate
The 2022 enactment of Assembly Bill 2595 marked a watershed moment for cannabis-related child welfare cases in California. The law mandates that the Department of Social Services update all regulations to ensure that cannabis use by parents is “treated in the same manner as a parent’s or guardian’s use or possession of alcohol and legally prescribed medication” during child welfare investigations [21] [46] [47] [48] [49].
The legislative analysis accompanying AB 2595 acknowledged instances where children were removed from parents’ homes solely because parents used or tested positive for cannabis, despite no evidence of harm or risk to the children [46] [48]. AB 2595 does not eliminate consideration of cannabis in child welfare cases; rather, it establishes that cannabis should be evaluated using the same framework applied to alcohol.
Prenatal Cannabis Exposure and Newborn Safety
Research from Kaiser Permanente Northern California found that after recreational cannabis legalization in 2018, prenatal cannabis use during early pregnancy increased significantly [20] [22]. Medical research has associated prenatal cannabis use with increased risks of adverse outcomes, including preterm birth, low birth weight, and NICU admission [20] [22].
However, California does not automatically treat prenatal cannabis use as reportable to child welfare authorities [23]. California law does address substance-exposed newborns, requiring plans of safe care for “infants born and identified as being affected by substance abuse or withdrawal symptoms resulting from prenatal drug exposure” [26]. However, identification of prenatal cannabis exposure does not automatically trigger dependency proceedings; rather, it initiates an assessment of needs and risk indicators.
Cannabis and Breastfeeding
THC, the psychoactive component of cannabis, is lipid-soluble and can accumulate in breast milk to high concentrations [24]. The American Academy of Pediatrics and the American College of Obstetricians and Gynecologists recommend that mothers avoid cannabis during breastfeeding [24] [25]. However, ACOG’s 2025 clinical guidance notably states that “continued cannabis use is not a contraindication to breastfeeding, and breastfeeding should not be discouraged” [25].
From a child welfare perspective, cannabis use while breastfeeding alone should not trigger removal absent evidence of actual harm or substantial risk to the infant. As with other parenting contexts, the nexus requirement applies [2] [8].
Property Division and Financial Issues: Cannabis in Dissolution Proceedings
Cannabis-related financial and property issues in dissolution proceedings present complex challenges for California family law practitioners.
Cannabis Businesses as Community Property
When one or both spouses own an interest in a cannabis business, that business interest generally constitutes community property subject to equal division upon dissolution [11] [13] [15] [16]. However, valuing and dividing cannabis business interests presents unique complications that distinguish them from conventional businesses.
The Valuation Challenge
Cannabis business valuation in divorce proceedings is complicated by multiple factors:
Federal Illegality: Despite state-level legalization, cannabis remains a Schedule I controlled substance under federal law, creating fundamental uncertainty about business value [14].
Non-Transferability of Licenses: California cannabis licenses are issued to specific individuals or entities and face significant transfer restrictions. In many cases, cannabis licenses cannot be freely transferred as part of a property settlement, requiring creative solutions such as buyouts, ongoing co-ownership with detailed operating agreements, or liquidation of the business [12] [14].
IRC Section 280E Limitations: Internal Revenue Code Section 280E prohibits businesses trafficking in Schedule I or II controlled substances from deducting ordinary and necessary business expenses, allowing only cost-of-goods-sold as an offset to gross receipts [36] [38] [39]. This dramatically increases the effective tax burden on cannabis businesses and affects their actual profitability and fair market value.
Operating Agreement Provisions: Cannabis business operating agreements often contain specific buyout formulas, transfer restrictions, and valuation methodologies that may govern dissolution-related transactions [12].
Child Support and Spousal Support Calculations
When a parent owns or works in a cannabis business, calculating child support and spousal support requires careful analysis of income [37]. For cannabis business owners, determining accurate income involves several challenges:
Distinguishing Business Revenue from Personal Income: Cannabis business owners may take income as salary, distributions, or a combination. California courts may impute income to a business owner who minimizes salary to avoid support obligations [37].
IRC Section 280E Effects on Cash Flow: Because cannabis businesses cannot deduct most operating expenses for federal tax purposes, their tax liability is disproportionately high relative to actual profit. Support calculations based solely on tax returns may not accurately reflect available income [36] [38].
Non-Cash Compensation: Cannabis business owners may receive non-cash benefits such as free product, use of company vehicles, or other perquisites that constitute income for support calculation purposes [37].
Property Settlement Strategies
Given the unique challenges of dividing cannabis business interests, family law practitioners and divorcing spouses have several options:
Buyout: One spouse buys out the other’s community property interest based on an agreed or court-determined valuation.
Continued Co-Ownership: Spouses may agree to continued co-ownership of the cannabis business post-dissolution, with detailed agreements governing management, distributions, and eventual buyout or sale.
Liquidation: If neither spouse can buy out the other and co-ownership is not feasible, liquidation of the business may be necessary.
Non-Cannabis Asset Offset: The spouse retaining the cannabis business interest receives that asset while the other spouse receives assets of equivalent value, such as equity in the family residence, retirement accounts, or other investments.
Special Considerations: Move-Away Cases and Interstate Issues
When a parent with custody seeks to relocate with a child, cannabis use by either parent may become a contested issue affecting the court’s decision.
California’s Move-Away Legal Framework
California recognizes that parents with custody generally have the right to change their residence, subject to the court’s power to restrain a move that would prejudice the child’s rights or welfare [27] [29] [31] [33]. The legal standard depends on whether the parent has sole or joint physical custody.
Cannabis as a Factor in Move-Away Decisions
Cannabis use or involvement in the cannabis industry may intersect with move-away cases in several ways:
Relocation for Cannabis Business Opportunities: A parent may seek to relocate to pursue cannabis business opportunities in other states or jurisdictions with different regulatory environments.
Cannabis Use in the Destination Jurisdiction: If a parent is relocating to a jurisdiction with different cannabis laws (for example, a state where cannabis remains fully illegal), this may affect the court’s analysis of the proposed move’s impact on the child.
Interstate Custody Complications: When cannabis-related custody disputes involve parents living in different states, jurisdictional and enforcement complications arise. If a California court has made custody orders allowing medical marijuana use and one parent relocates to a state where all cannabis use is illegal, enforcement becomes complex.
Practical Guidance for Parents and Practitioners
Based on the current state of California law and emerging trends, several practical recommendations emerge:
For Parents Who Use Cannabis
Prioritize Child Safety: Never use cannabis while actively caring for children. Ensure that another sober adult is supervising. Store all cannabis products securely out of children’s reach. Never drive while impaired, and certainly never with children in the vehicle.
Avoid Use in Children’s Presence: Do not consume cannabis where children can see it, and do not expose children to secondhand smoke or vapor [3] [41].
Be Prepared for Testing: If involved in a custody dispute, anticipate that the other parent may request drug testing. Be prepared to explain your usage patterns and demonstrate that your cannabis use does not impair your parenting.
Seek Legal Advice Early: If cannabis use may become an issue in a custody dispute or child welfare investigation, consult with a family law attorney early to understand your rights and develop a strategy.
For Family Law Practitioners
Conduct Thorough Discovery: In cases involving cannabis business interests, pursue comprehensive discovery including license applications, operating agreements, financial records, and ownership documentation. Consider retaining forensic accountants and cannabis business valuation experts.
Establish the Nexus: When arguing that a parent’s cannabis use should affect custody, focus on establishing a concrete nexus between the use and harm or risk to the child. Mere use will not suffice under Drake M. and its progeny [2] [8].
Address Testing Methodology: If seeking drug testing, specify that testing should detect psychoactive compounds (THC) rather than long-lasting metabolites [28] [45].
Consider Practical Parenting Plans: Rather than absolute prohibitions on cannabis use, consider parenting plan provisions that address the practical concerns—no use within a certain timeframe before parenting time, no use in the child’s presence, secure storage requirements, and no driving while impaired.
Stay Current on Developments: Cannabis law and family law continue to evolve rapidly. Monitor legislative developments, new case law, and emerging research to provide competent representation.
Conclusion
The intersection of cannabis law and family law in California presents one of the most dynamic and complex areas of contemporary legal practice. Since the passage of Proposition 215 nearly three decades ago, California has pioneered cannabis policy reform, yet the legal landscape remains far from settled.
For parents navigating California’s family courts, the message is clear: while cannabis is legal for adults, its use is not consequence-free in the family law context. Courts expect parents to use cannabis responsibly, keep it away from children, never use while impaired and caring for children, and avoid any use that creates risks to child safety. The Drake M. nexus requirement provides important protection against discrimination based solely on legal cannabis use, but courts will intervene when cannabis use demonstrably impairs parenting or endangers children.
For family law practitioners, cannabis-related cases demand careful attention to evolving case law, statutes, and research findings. Whether addressing custody disputes, property division involving cannabis business interests, child welfare investigations, or support calculations, attorneys must navigate uncharted territory with limited precedent and significant stakes for their clients and the children involved.
As California continues to refine its cannabis regulatory framework and courts develop more robust jurisprudence on family law issues, one principle should guide all stakeholders: the best interest of the child must remain paramount. Cannabis policy, like all family law, exists ultimately to serve children’s welfare, safety, and healthy development.
Shay Aaron Gilmore, a cannabis and hemp industry attorney in California who specializes in business transactions, regulatory compliance, and commercial law, will on February 11, 2026 co-moderate a panel discussion on the intersection of cannabis law and family law, presented by the California Lawyers Association. For more information about the panel discussion, visit https://calawyers.org/event/webinar-from-bud-to-battle-cannabis-issues-in-family-court-part-1/.