Illinois legalized recreational marijuana on January 1, 2020, joining a growing number of states that permit adults to legally possess and use cannabis under certain circumstances. Medical marijuana has also been legal in Illinois for years through the state’s Medical Cannabis Program.
Although marijuana use is legal under Illinois law, many parents wonder whether using medical or recreational cannabis could affect child custody or parenting time during a divorce or other family law proceeding.
The short answer is that legal marijuana use alone should not prevent a parent from receiving parenting time or decision-making authority. However, the way cannabis is used—and whether that use negatively affects a child—can become an important issue in custody litigation.
If you are involved in a divorce, paternity case, or parenting dispute, understanding how Illinois courts evaluate marijuana use can help you protect both your parental rights and your child’s well-being.
Illinois became one of the first states to legalize recreational marijuana through legislation rather than a statewide ballot initiative.
Today, adults who are at least 21 years old may legally purchase and possess limited amounts of cannabis under the Illinois Cannabis Regulation and Tax Act. Subject to applicable legal restrictions, Illinois residents may possess:
Non-residents may possess smaller amounts.
Illinois law also regulates where marijuana may be consumed. Property owners, employers, and landlords may prohibit cannabis use on their property under certain circumstances, and public consumption remains restricted in many locations.
Despite legalization under Illinois law, marijuana remains classified as a Schedule I controlled substance under federal law. While this federal classification rarely affects routine family law cases, it is one reason cannabis laws continue to evolve.
Illinois also allows qualifying patients to use medical cannabis when recommended by an authorized healthcare provider and approved through the state’s Medical Cannabis Program.
Medical marijuana is commonly prescribed or recommended to help manage conditions involving:
Using medical cannabis pursuant to Illinois law does not automatically make someone an unfit parent.
Instead, family courts focus on whether a parent’s conduct affects the child’s safety and best interests.
Illinois no longer uses the traditional terms “custody” and “visitation.” Instead, courts allocate:
When determining the child’s best interests, courts consider numerous statutory factors, including:
Importantly, Illinois courts generally do not focus on whether a parent’s lifestyle choices differ from another parent’s. Instead, the court evaluates whether those choices negatively affect the child.
No.
The Illinois Cannabis Regulation and Tax Act specifically provides that lawful cannabis use alone is generally not a basis for restricting parental rights.
In other words, simply using marijuana legally—whether for recreational or medical purposes—does not automatically make someone an unfit parent.
Much like the responsible consumption of alcohol, legal cannabis use is generally treated as a lawful adult activity.
However, legalization does not protect conduct that places children at risk.
If marijuana use interferes with a parent’s ability to safely supervise, care for, or make appropriate decisions for a child, the court may consider that evidence when determining parenting arrangements.
Family courts become concerned when cannabis use creates a genuine risk to a child’s safety or well-being.
Examples may include:
Operating a vehicle while under the influence of marijuana is illegal in Illinois.
If a parent drives with a child while impaired, the court may view that conduct as evidence of poor judgment and a potential danger to the child.
Occasional lawful marijuana use after children are asleep may be viewed differently than frequent intoxication while actively supervising young children.
If cannabis use prevents a parent from responding appropriately during emergencies, preparing meals, supervising activities, or otherwise caring for the child, it may become relevant during custody proceedings.
Cannabis products should always be stored securely and out of children’s reach.
Parents should keep:
in locked containers or other secure locations where children cannot access them.
Edible cannabis products are particularly concerning because they may resemble ordinary candy or baked goods.
A court may become concerned if evidence shows that marijuana use regularly interferes with parenting responsibilities.
Examples could include:
The issue is not simply marijuana use itself, but whether the parent’s conduct negatively affects the child.
Illinois courts generally do not restrict parenting time based on speculation or personal opinions about marijuana.
A judge typically requires evidence showing that cannabis use has actually endangered—or is likely to endanger—the child’s physical, emotional, mental, or moral well-being.
Evidence may include:
The court evaluates the totality of the circumstances rather than relying on isolated accusations.
Parents who use medical cannabis often worry that their prescription alone could negatively affect their custody case.
Generally speaking, lawful medical marijuana use is treated similarly to other prescribed medications.
The important question is whether the medication allows the parent to function safely or instead impairs their ability to care for their child.
Many individuals use prescribed medications for chronic pain, anxiety, PTSD, epilepsy, or other medical conditions while remaining excellent parents.
Conversely, misuse of any prescribed medication—including opioids, benzodiazepines, or medical cannabis—may become relevant if it affects parenting abilities.
Researchers continue to study the long-term effects of cannabis, particularly high-potency products that contain significantly greater concentrations of THC than marijuana products available decades ago.
Some studies suggest that heavy or prolonged marijuana use, particularly among certain individuals, may increase the risk of developing or worsening psychiatric conditions such as psychosis or schizophrenia.
This does not mean everyone who uses cannabis will experience mental health problems.
However, when custody disputes involve documented mental illness, substance abuse, or impaired functioning, courts may carefully examine whether marijuana use contributes to those concerns.
Each case depends on its unique facts and the available medical evidence.
If you are involved in an Illinois parenting dispute and legally use marijuana, consider taking additional precautions to demonstrate responsible parenting.
These may include:
Responsible conduct often carries far greater weight than stereotypes or assumptions.
Generally, no. Illinois law does not automatically penalize parents for lawful recreational or medical marijuana use. Courts focus on whether your conduct negatively affects your child’s safety or best interests rather than whether you legally consume cannabis.
Both forms of legal cannabis are generally evaluated in the same way during custody proceedings. The court considers whether your marijuana use impairs your ability to safely parent rather than whether your use is recreational or medical.
The other parent may raise the issue, but allegations alone are usually insufficient. They typically must present credible evidence that your marijuana use has endangered or is likely to endanger your child or has substantially interfered with your parenting responsibilities.
Possibly. In certain cases involving credible allegations of substance abuse or child endangerment, the court may order evaluations, testing, or other investigations. Whether testing is appropriate depends on the specific facts of the case.
Every case is different. Even lawful marijuana use can become more heavily scrutinized during contested parenting litigation. Discuss your circumstances with your attorney before making decisions that could affect your case.
If you believe the other parent’s marijuana use is placing your child at risk, you should document your concerns and speak with an experienced family law attorney. Evidence showing actual impairment, unsafe supervision, driving while intoxicated, or neglect is generally far more persuasive than generalized concerns about cannabis use.
Yes. If marijuana use significantly changes after the original parenting order and begins affecting a child’s safety or welfare, it may become one factor supporting a request to modify parenting time or parental responsibilities. Likewise, evidence that previous concerns have been resolved may support modification in the opposite direction.
If marijuana use has become an issue in your child custody or parenting time case, it is important to understand how Illinois courts evaluate these situations. Legal cannabis use does not automatically determine the outcome of a parenting dispute, but evidence that substance use affects a child’s safety can influence the court’s decisions.
The experienced family law attorneys at Gordon & Perlut, LLC represent parents throughout Chicago, Skokie, Cook County, and the surrounding communities in matters involving parental responsibilities, parenting time, child custody modifications, and other family law disputes. We can help you understand your rights and develop a strategy that protects both your parental relationship and your child’s best interests.
Contact Gordon & Perlut, LLC at our Chicago office at 312-360-0250 or call our Skokie office at 847-329-0101 today to schedule a confidential consultation with an experienced Chicago child custody attorney.
This article is intended for general informational purposes and does not constitute legal advice for any individual case.
