Although recreational marijuana is legal in neighboring Illinois and Minnesota, marijuana possession remains illegal under Wisconsin law. As societal attitudes shift and accessibility increases, many adults continue to use marijuana regardless of state prohibitions. For parents navigating a divorce, it is important to understand that such use can lead to significant child custody challenges when a court determines substance abuse by a parent is detrimental to the best interests of the child.
In Wisconsin divorce proceedings, courts frequently address allegations of marijuana use when determining child custody and placement. Judges prioritize the best interests of the child, evaluating whether a parent can provide a safe, stable environment and maintain the clarity of mind required for effective parenting. Because marijuana remains illegal in Wisconsin, courts are generally reluctant to award custody in situations that appear to model or endorse illegal activity.
Even in jurisdictions where recreational marijuana is legal, courts evaluate whether a parent is modeling responsible behavior. Under federal law, marijuana remains a Schedule I substance. Modern cannabis, which possesses significantly higher THC potency than in previous decades, carries well-documented risks to children through direct use, secondhand exposure, and behavioral modeling. These risks include cognitive and neurodevelopmental impairments, mental health challenges, and addiction potential, all of which can significantly jeopardize a child’s development.
Strengthening Your Child Custody Case
If you suspect the other parent is using marijuana around the children or is impaired during parenting time, it is helpful to provide the court with current research, statistics, and facts. Today’s marijuana is more potent, more accessible to kids, and more widespread, and it simply carries more risks. Your attorney should present this information to the judge along with substantiated allegations to inform custody that is in your child’s best interests. Certainly drug testing (such as hair follicle or fingernail tests) can be ordered which can demonstrate use over previous months to back up your claim. Sometimes the mere threat of testing encourages admission and leads to productive custody negotiations.
Whether marijuana is legal or not in a given state, courts prioritize the child’s best interests. Many parenting plans include specific safeguards. These are practical, enforceable rules rather than outright bans on legal adult use outside parenting time:
Provisions for a Comprehensive Parenting Plan
No use during parenting time: Abstain from all forms (smoking, vaping, edibles) for a set period—often 24 hours before and during all time with the children.
No use in the child’s presence: Prohibit consumption where the child can see, smell, or be exposed, including in the home while children are present.
Secure storage: Keep all marijuana products, edibles, and paraphernalia in locked, child-resistant containers out of reach.
No impaired driving: Prohibit driving with children after recent use; some plans require a waiting period or sober driver.
No secondhand exposure: Ban indoor smoking or vaping near the child.
Impairment clause: The parent must remain unimpaired and able to provide safe, attentive care.
Drug testing: Random or scheduled testing (urine, saliva, hair) may be required in higher-conflict cases, with consequences for positive results.
Supervised visitation: Used as a temporary measure if risks are significant, until compliance is shown.
Additional safeguards: Limits on associating with other users during parenting time, parenting classes, or substance education programs.
Courts treat marijuana similarly to alcohol: responsible, non-impairing use is generally tolerated, but habitual or irresponsible use that affects parenting can result in reduced time, no overnights, or supervision. A medical card does not automatically shield a parent from restrictions.
Contact an Experienced Child Custody Attorney for Professional Legal Guidance
Whether substance abuse or marijuana use is impacting your child custody arrangement, securing expert legal guidance is essential to resolving these concerns effectively. Contact top-rated Wisconsin child custody attorney Jane Probst at 414-210-3135 for immediate assistance.