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Oklahoma medical marijuana license holders could face custody issues

medical marijuana custody issues graphic

By Cassity B. Gies

On June 26, 2018, Oklahoma voters approved State Question 788, legalizing cultivation, use, and possession of medical marijuana. Almost three years after passing with 57% of voter support, our state struggles to manage the competing interests surrounding a legal concept colored with controversial opinions, long standing prejudices, and discriminatory undertones that linger in the air every bit as noticeable as the smell of marijuana smoke, itself.

Phillips Murrah family law attorney Cassity Giles

Cassity practices family law including divorce and separation, custody, and child support issues.

Far from a settled issue, the debate surrounding the medicinal value of the marijuana plant carries hundreds of years of societal and legal baggage, which complicates the implementation of Oklahoma’s newest industry.

Anticipating the gamut of opinions surrounding this controversial plant, anti-discrimination laws approved both by voters in the original ballot initiative and again by lawmakers in the Oklahoma Medical Marijuana Use and Patient Protection Act (more commonly known as the Unity Bill), aim to protect patients and license holders from foreseen prejudices. However, when bumping up against 120 years of court decisions regarding marijuana as a dangerous Schedule 1 drug, akin to the likes of heroin, frankly, the reality of our state’s anti-discrimination protections should make Oklahoma patient card holders, especially those with families and children, nervous.

The Oklahoma Public Health Code, 63 O.S. § 42(D), reads “No medical marijuana license holder 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 law unless the persons behavior creates an unreasonable danger to the safety of the minor.”

Our family law practice handles medicinal marijuana issues on a weekly basis now. The impact of holding a medical marijuana card varies according to every situation, and multiple factors affect the extent that a patient card can complicate a custody decision.

Judges vary in their attitudes towards medical marijuana. Some attribute its uses to the likes of any other legal prescription. Others take a stricter stance, opposing its use by any person providing care for children, regardless of prescription. Clients should be fully informed that marijuana consumption during these early years of implementing its legality can disadvantage a marijuana patient if he or she comes up against judicial disfavor.

I have heard attorneys openly warned from the bench that, regardless of how the law reads, any consumption of marijuana by a parent will be enough for that judge to presume the parent is under the influence while parenting a child, and therefore endangering the child. While this may seem to cut directly against 63 O.S. 42D, judges are ultimately charged with determining the best interests of children during custody decisions, and the deference awarded to their judicial determination provides wide latitude.

One straight-shooting guardian ad litem candidly told me that if their office learns a client has a marijuana card and that client resides in certain rural jurisdictions, the first piece of advice given to those parents is to surrender their prescription and forfeit their medical marijuana license because they will instantly be disfavored by the court.

The more moderate and more widely held attitude towards medicinal marijuana use and child custody decisions examines the facts of a case and looks for a nexus between a parties’ marijuana use and activity that threatens to harm the child. Is a parent exposing the child to marijuana? Is the child able to access it? Are the parents subjecting the child to secondhand exposure? Practicing in family law requires understanding that multiple global perceptions shape custody decisions and, as in all custody considerations, the specific facts at hand will affect the outcome of the case.

When a parent finds themselves googling “marijuana and child custody decisions,” litigation is already at an increased risk of conflict, and understanding that complication starts with understanding how to frame the divisive issues at hand and the rules of the Oklahoma Medical Marijuana Authority (OMMA). Attorneys in this field should know how to craft their case when marijuana issues are present, and, remarkably, this area of law often gets glanced over by attorneys declining to study this nuance.

It surprises me how few family law attorneys have studied the OMMA regulations and are admittingly unfamiliar with the impact that they have on child custody issues. A common example is Okla. Admin. Code § 310:681-5-17, amended last fall, authorizing non-licensed minors to enter a licensed cannabis premise when accompanied by a parent or legal guardian.

Besides a thorough knowledge of cannabis laws, many attorneys have yet to dive into the evidentiary nuances that arise in these cases. For example, drug testing has been accepted for years amongst courts as forensic evidence, but a good attorney knows the limits of these tests. When the purpose of a drug test is to provide forensic evidence in a court of law, shockingly, the FDA does not regulate or review the processes and procedures for drug testing facilities providing forensic results. This surprises people to hear and causes a good attorney to slow down and learn a little cannabis chemistry.

Having a relationship with experts who can support or discredit a disputed drug test can crucially benefit your client’s case. Most of our local courts require education in understanding the limitations of a drug test. Understanding laboratory inconsistencies, chain of custody arguments, and scholarly research illuminating faulty processes helps sort through blatantly false results which, disappointingly, circulate in courtrooms everywhere.

As soon as a prospective client shares that they hold a medicinal marijuana license, or that opposing party holds a license, the attorney should recognize this complication and advise their client of the additional work that could likely accompany their case. With the Oklahoma cannabis industry blazing ahead into what many people consider a twenty-first century land rush, the accompanying fallout affecting family law should not be taken lightly.


For more information on how the information in this article may impact you, please call 405.606.4744 or email Cassity B. Gies.

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Kanye Family Law Lessons – Digging for Gold in Oklahoma

By Robert K. Campbell

Music has permeated our society since the beginning of time. Artists have touched on all topics, such as politics, religion, social matters, etc. In 2005, Kanye West had a number-one hit song with “Gold Digger.” Urban Dictionary defines the term “gold digger” as “someone who only likes people because of how much money they have, or because of the items they own.”

In this article, I will discuss some of the lyrics and how West’s sentiments would apply based upon Oklahoma laws. For purposes of this article, any gender specificity as it relates to the term “gold digger” should be disregarded, as the term is gender neutral. After all, anyone can dig for gold. I am not, however, suggesting explicitly, implicitly, or in any other manner, that either Kim Kardashian West or Kanye West is a gold digger.

The first lines in verse two of the song begin: Eighteen years, eighteen years / She got one of your kids, got you for eighteen years

Attorney Robert Campbell

Robert K. Campbell’s legal practice is focused in the area of family law, specifically concentrated in matters of divorce, legal separation and custody issues. He represents clients by providing steady, thoughtful and resourceful counsel to advise them through significant family and life transitions.

This is mostly a true statement. Oklahoma law requires both parents to provide financial support for their children during a divorce, or in situations where the parents were never married. Typically, one parent pays the other parent child support. Child support is generally owed until the minor child reaches the age of 18 or graduates high school, whichever is later. Considering the lyrics above, if you have a child, you will be obligated to pay child support until at least the age of 18, so, the above lyrics are, in essence, correct.

“Gold Digger” lyrics go on to state: I know somebody payin’ child support for one of his kids / His baby mama car and crib is bigger than his … She was supposed to buy your shorty Tyco with your money / She went to the doctor, got lipo with your money

This sentiment is often a complaint that the child support payor makes about paying child support. The argument is that the payor pays the other parent monthly child support, and the payor does not know how the support is being spent by the other parent.

In Oklahoma, a child support obligation assumes that all families incur certain child-rearing expenses comprised of housing, food, transportation, basic public educational expenses, clothing, and entertainment. Absent a binding and enforceable agreement between the parents, there is no requirement that the child support funds be used for any specific purpose. In other words, yes, it could happen that a parent pays child support and the other parent uses it for a car, home, or whatever else they wish.

In a dramatic twist of events, “Gold Digger” lyrics include lines that state: Eighteen years, eighteen years / And on the 18th birthday he found out it wasn’t his?

Imagine believing you are the parent of your child, to then find out after 18 years that the child was not yours after all. This can and has happened. There is a published opinion in Oklahoma touching on this very point.

In Miller v. Miller, 1998 OK 24, Mr. Miller sued his ex-wife and her parents for damages for inducing him to marry his ex-wife and knowingly misrepresenting to him that she was pregnant with his child. Mr. Miller sued his ex-wife under the theories of fraud, intentional infliction of emotional distress, and that his ex-wife was unjustly enriched equal to the amount of child support he paid his ex-spouse per month.

The Oklahoma Supreme Court held that Mr. Miller had a viable claim for fraud and intentional infliction of emotional distress, but not for unjust enrichment for the child support he paid his ex-wife. To avoid such a situation, if there is any question or doubt that you are the father of a child, then genetic testing can be performed to establish your parentage, or lack thereof, to hopefully avoid the situation described above.

To side-step the mishaps that West sings about in “Gold Digger,” he attempts to provide his listeners with some words of wisdom. “Gold Digger” contains the lyrics: Holla, “We want prenup! We want prenup!” / It’s something that you need to have / ‘Cause when she leave yo’ ass, she gon’ leave with half

While these lyrics are not bad advice, the part about leaving you with half without a “prenup” is not always true. In Oklahoma, the courts divide the marital estate equitably, which does not always mean equally. However, in most circumstances, the Court attempts to divide the marital estate equally, but there may be circumstances that warrant a disproportionate division.

Oklahoma does recognize and enforce a valid prenuptial agreement. However, at this time, it does not recognize a post-nuptial agreement. Thus, if you want to determine how your estate will be divided upon death or divorce, you must execute a prenuptial agreement prior to marriage.

Additionally, while a prenuptial agreement can allow a couple to determine matters related to the division of their estate and support alimony, it cannot be used to determine custody, visitation, and child support. Issues related to children are always subject to the Court’s determination and what is in the best interest of the children.

And remember, as I stated earlier in the article: Now, I ain’t saying she a gold digger


For more information about this article or any other Family Law inquiries, please call Robert K. Campbell at 405.606.4797 or email him at rkcampbell@phillipsmurrah.com.

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Director presents for OU Women and Gender Studies class

Nicholle Jones Edwards

Nicholle Jones Edwards’ practice focuses on family law, labor law and general civil litigation. Her family law practice includes litigation, complex custody issues and valuation issues.

Nicholle Jones Edwards, Director and member of the Family Law Practice Group, presented to the Women and Gender Studies class at the University of Oklahoma on Oct. 23.

The class is comprised of mostly seniors and students looking to attend law school. Her presentation focused on custody and the impact of gender on custody disputes.

Edwards advised that Oklahoma law has enacted statutory measures to prevent gender bias in these matters, lending the example that in divorce cases, mothers’ rights are no greater than fathers’ rights under the law.

However, the issue in same-sex divorces as with any other divorce will focus on the best interest of the child, she said.

Edwards previously served on the Advisory Board for the Women and Gender Studies program and continues to lend support.

To learn more about OU’s Women and Gender Studies class, click here.