Although the case law and other legal authorities and/or precedents are relatively new in Arizona regarding medical marijuana, there is an affirmative defense available to patients regarding child custody and parenting time rights.
A.R.S. ? 36-2813 (D) states:
[n]o person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the person's behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.
Although the statute makes clear that a person cannot be arbitrarily denied custody and/or parenting time for proper medical marijuana use; the same statute nonetheless does nothing more to better define what constitutes behavior which presents an unreasonable danger to the safety of a minor child.
Unfortunately, this vague definition will be left to the courts to determine. In the opinion of this writer, this may not be to the benefit of qualifying patients as it is more probable than not that the courts, at least initially will error on the side of caution when determining if unreasonable dangers are or are not presented to a child from a qualifying patients conduct while medicated.
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