picture ot THC gummies

Delta-9 THC and Custody Issues

As of July 1, 2022, hemp-derived THC, also known as “Delta-9,” became legal in Minnesota.  Hemp-derived THC is chemically similar to the THC that is found in marijuana. The legalization of hemp-derived THC is creating interesting new issues in custody and parenting time disputes.

It is not uncommon, when parties are discussing custody and parenting time concerns, for one party to request that the other receive one-time or regular drug testing. This is particularly relevant where there is a prior history of use or a concern about usage that occurs during parenting time or affects a party’s ability to parent.

There are different types of drug tests that can be required by the court or agreed to in a stipulation between the parties.  Urine tests will show the presence of THC in a user’s system for anywhere from 3-30 days after usage. The heavier the usage of THC, the longer the time period it will show up in a urine test. 

The other type of test that is used is a hair follicle test. Hair follicle tests are more sensitive, and can detect drug use for up to 90 days after usage. Hair follicle tests are also better at detecting the level of usage and offer a variety of different “panel” levels to test for a variety of different types of substances in any single test.

Delta-9, despite being legal, will show up on drug tests as if the user has consumed marijuana, which remains illegal in Minnesota.  Indeed, thanks to the chemical similarity, neither a urine test nor a hair follicle test will distinguish between whether a user consumed the legal Delta-9 version or the still-illegal version. 

Typically, language regarding drug use or testing in a custody and parenting time order will refer a prohibition on either “illegal substances.” This language does not address use of a substance that is legal, but also mood-altering. 

Because of that, it is wise to craft a stipulation—or make a request of the court—that takes into account concerns about Delta-9 usage. Where there is acknowledged legal use, or a concern about illegal use or frequency of use, parties and attorneys will have to become specific within orders to acknowledge the shifting landscape of legality in Minnesota.

This may include indicating a certain test, testing center, and cutoff limits that will assist in determining if use is occurring at a level that the requesting party would consider concerning when addressing parenting time issues.

Here at Haugen Law Group, we work to stay up-to-date on developments in the law so that we ensure these types of issues are addressed in your family law matter.


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