Smoking pot may have no effect on a person’s ability to be a responsible and loving parent, but that does not mean that it won’t factor into a custody decision. Parents around the country have had their custody rights limited or denied because they chose to grow a few plants or smoke on occasion. Now that California has legalized marijuana for both medicinal and recreational usage, shouldn’t a parent’s pot habit be a non-issue? Unfortunately, the answer is not that simple.

Marijuana remains illegal under federal law. A bill decriminalizing marijuana has passed the House of Representatives, but its fate in the Senate is much less clear. Although California courts certainly understand marijuana’s legality under state law, there is always the chance that “committing a federal crime” could influence a particularly old-school court’s opinion. So long as marijuana is only partially legal, some stigma remains.

Moreover, California courts are free to restrict or reject custody rights whenever a parent’s recreational habits threaten the health or safety of a child. Adults are well within their rights to possess and consume alcohol in the home, for example, but a parent who abuses alcohol risks their custodial rights. One parent could raise the issue of the other parent’s alcohol consumption during a divorce proceeding, or a concerned party might call Child Protective Services (CPS) outside of the divorce context. If the court or the state finds that the parent’s alcohol use endangers the children, the parent could lose custody.

The same principle applies to marijuana use: If a court finds that a parent’s possession or usage of marijuana endangers the children, the parent might lose their custody battle. If a parent is shown to be extremely irresponsible or neglectful of their children in connection with marijuana usage, they could lose their rights to visitation or even face criminal child neglect and endangerment charges.

What about medical marijuana?

Parents with a medical marijuana card find no additional solace. The question remains the same: Are the children’s best interests harmed by the parent’s marijuana habit? Courts and CPS are evolving, along with the rest of the state (and the country), on the topic of cannabis. However, whether cannabis consumption presents a clear and present danger to the children largely remains up to the discretion of the court or agency officials. Custody results vary widely by county. In some counties, CPS and the courts understand that cannabis is as common as alcohol, and likely less dangerous to children. In others, the wrong agency official or court might view cannabis consumption alone (whether medicinal or otherwise) as evidence that a parent is unfit. While such a finding could certainly be challenged on appeal, the risk persists.

Parents who want to keep up the habit without risking their custody rights should make sure they keep their pot play as responsible as possible. Parents should make sure to keep all marijuana and marijuana-related paraphernalia hidden and locked away from child access. Parents should never drive after consuming cannabis or cannabis products, and they should avoid over-consuming whenever a child is home (even if they are asleep). Concerned parents should also limit the amount of pot they keep in the house at any given time. If a parent plans to bake up a marijuana-infused dish, they should keep the kids far away from the kitchen at all times. It’s also wise to avoid volunteering information about cannabis consumption in court unless asked a specific question.

Look to alcohol as a roadmap: The occasional beer or glass of wine is fine, along with the odd more indulgent night when the kids are staying with grandma. But if a parent is getting high with small children in the room, if they drive with the kids in the car while intoxicated, if the kids eat the “wrong” brownie on more than one occasion, or if a parent gets too high and forgets to pick up the kids from school, then there’s a problem.

Attitudes about marijuana are changing, but there are still holdovers in state and local government who would be more than happy to hold a green-friendly parent’s habits against them. If a parent is facing a particularly vicious custody battle and a judge seems especially old-school, abstinence may be the best option. Ideally, responsible use that keeps parenting responsibilities and personal pot time separate should be unobjectionable. Until laws and ideas fully shift, however, cannabis remains a concern in child custody matters.