THURSDAY, JULY 24, 2019 | SERVING CHICAGO’S LEGAL COMMUNITY FOR 164 YEARS | CHICAGOLAWBULLETIN.COM VOLUME 165, NO. 143 Possible problems for divorced parents when marijuana legal On June 25, Gov. J.B. ever, additional concerns will Department of Public Health Pritzker signed into law a bill likely arise for the divorce to obtain access to cannabis that will legalize marijuana in practitioner since monitoring for medical use. Illinois effective Jan. 1. This the adult use of marijuana may Section 40, titled “Discrimi- law allows the licensed make the already difficult situ- nation Prohibited,” provides growth, sales, possession and ation of proving whether a in Subparagraph (b), “A per- consumption of cannabis for parent’s behavior poses an son otherwise entitled to cus- adults 21 and older. unreasonable danger to their tody of or visitation or Specifically, residents of age child even more complicated. parenting time with a minor can possess up to 30 grams of In Illinois, divorced parents may not be denied that right MODERN cannabis, up to 5 grams of with children are subject to and there is no presumption cannabis concentrate and up allocation judgments that FA M I LY of neglect or child endanger- to 500 milligrams of THC in apportion parental responsi- ment, for conduct allowed cannabis-infused products. bilities and time with their ANDREA K. MUCHIN under this act, unless the per- While many in Illinois sup- children. Often this is accom- son’s actions in relation to port the act and believe that plished by agreement. In high- cannabis were such that they ANDREA K. MUCHIN is a legalization of adult use of conflict situations, however, created an unreasonable dan- partner of Schiller DuCanto cannabis brings a long over- one parent may try to impose ger to the safety of the minor & Fleck LLP whose practice due change to Illinois, some a restriction on the other par- as established by clear and concentrates on resolving concerns have been expressed ent’s time with their children convincing evidence” (401 complex family law and regarding the legalization of due to several factors, one of ILCS 130/40(b)). divorce cases —both marijuana. which may include excessive Whether this act remains as through settlement and For instance, there is a drug or alcohol abuse. is or is amended based on the litigation. Muchin focuses major concern whether mari- While different judges and legalization of marijuana and on the custodial needs of juana’s legalization will lead to courts have different stan- its recreational use in Illinois, wealthy individuals and an increase in impaired drivers dards for imposing restric- a court will be able to order a the complex financial on the roads. In an attempt to tions, certain conduct, such as restriction if one parent can issues regarding their address this concern, a provi- drinking or taking drugs and prove that the other parent’s estates and business sion of new act creates an Illi- driving with children in the use of cannabis seriously interests. amuchin@ nois State Police task force car, is almost always consid- endangered or sufficiently cre- s d f l a w. c o m . that will examine the ways to ered a danger to the child. ated an unreasonable danger enforce DUI laws involving To impose a restriction on a a court will consider are the to the safety of a minor child. marijuana use. parent’s time with their chil- use of drugs, alcohol or any Examples of court-ordered However, since there is no dren, a court must find, by a other substance in a way that restrictions include the follow- roadside sobriety test to preponderance of evidence, interferes with a parent’s abil- ing: detect marijuana use similar to that a parent engaged in a ity to perform caretaking func- • Professional supervisor breath tests used by officers conduct that seriously endan- tions with respect to the child present during parenting who suspect a driver is gered the child’s mental, (750 ILCS 5/603.10(b)(3)). time. impaired by drinking alcohol, moral or physical health or On Aug. 1, 2013, Illinois • Prohibition of drug con- enforcement remains a trou- that significantly impaired the enacted the Compassionate sumption during parenting bling issue and training law child’s emotional develop- Use of Medical Cannabis Pilot time. enforcement to help combat ment (750 ILCS 5/603.10(a)). Program Act (Public Act 98- • Prohibition on driving the issue will likely have an Moreover, in determining 0122), which allowed persons with the children during par- astronomical cost. whether to modify an order diagnosed with a qualifying enting time. In the context of a con- restricting parental responsi- debilitating medical condition • Real-time monitors for tested custody situation, how- bilities, included in the factors to register with the Illinois drug usage. Copyright © 2019 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.• Random drug testing. Although restrictions on germent was already compli- to advise a client about the • Requiring a parent to parenting time are the rare cated. likelihood of success in complete drug abuse treat- exception and not the rule, With the enactment of this attempting to prove in court ment. even before enactment of this new law, family law practition- there is an unreasonable dan- • Requirement that parent- bill legalizing marijuana, advis- ers should realize the addi- ger to the safety of the minor ing time occur in a public ing a client on what behavior tional complexities they will child because of a parent’s place. constitutes a serious endan- confront. Now they must try legalized marijuana use. Copyright © 2019 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.