4701 Oleander Drive, Suite A
Myrtle Beach, SC 29577


Axelrod & Associates, P.A.

Family court judges in the states that have legalized marijuana for recreational or medicinal use are dealing with this question: How should the changing legal status of the drug affect the way they rule in child custody cases?

Now that it’s legal, does that mean that pot smoking should not disqualify a parent from getting primary custody of their children?

In South Carolina, there is no such debate taking place. The law has not changed here – marijuana is illegal, and, if you are caught with any amount, you will be arrested.

And, if a SC family court judge hearing your child custody case learns that you smoke pot, it will affect their decision as to who gets primary custody of your children.


When determining child custody, SC family courts try to determine what’s in the best interests of the child. The factors they use to determine what’s in the child’s interest include:

  • The stability of each parent, including their employment situation and their access to appropriate housing;
  • Which parent the child would prefer to live with (depending on the age of the child); and
  • Which parent is better situated to ensure the physical and emotional well-being of the child.

Here’s the thing, though – even if the judge looks at all these factors and determines that you should get primary custody, they may very well deny you custody if they learn you smoke pot.

In some cases, none of the other factors matter once marijuana or other drug use is on the table. You may have a better job and employment record than your spouse and still lose custody because you tested positive for marijuana.

Even if your spouse has a minor criminal record and you have never been in any kind of trouble, a family court judge may deny you custody because of marijuana use.

How Would the Judge Know That I Smoke Pot?

Any party in a child custody dispute can file a motion requesting a drug test to prove the other party is a habitual user.

Let’s say you are a casual pot smoker and your spouse, of course, knows this. If you are in a contentious custody battle, they may request a drug test, knowing that if you fail they are more likely to get full custody.

The judge can order drug testing on one or both parties, even when no motion is filed if they believe there is evidence of drug use. Such evidence could include information provided by you, the testimony of a witness, or any drug convictions on your record.


If you fail a drug test during a child custody case, it can affect the custody determination. Your Myrtle Beach child custody lawyer on the Axelrod team will help you take steps to protect yourself and your children – call today at 843-353-3449 or fill out our contact form to set up a consultation.

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