Mar 21

Parenting and Pot: How CBD, THC, and Delta-8 Influence Child Custody Cases

Written by: Megan Dell


Allegations of illicit drug use alone including marijuana, Delta-8 and THC metabolites, have been common in South Carolina Family Court for some time. With the development of hemp-derived cannabidiol (also referred to as “CBD”), it has become harder to detect marijuana use from use of hemp-derived products.

Types of Cannabis Plants and Compounds

Cannabis is the name of a plant family that includes both marijuana and hemp. These plants look similar but have some differences:

  1. Marijuana Plants
    Some people use parts of the marijuana plant, like the leaves or flowers, to help with medical issues like pain, nausea, epilepsy. Or, when people smoke or eat parts of the marijuana plant, it can make them feel different in their body and mind.
    THC stands for tetrahydrocannabinol. It’s a natural cannabis compound found mostly in marijuana plants (but not in hemp plants). THC is what makes people feel “high” when they use marijuana.
  2. Hemp Plants
    Hemp is a plant that has been grown for thousands of years. People use it to make things like clothes, paper, and even food. It’s also used to make materials like rope because it’s strong. Hemp plants have been used for many different purposes throughout history.
    CBD is short for cannabidiol. It’s a natural cannabis compound found in cannabis plants, including hemp. CBD doesn’t make people feel “high” like THC does. However, hemp does contain low levels of THC and THC variants.

marijuana leaf

Marijuana Remains Illegal in South Carolina

As we have discussed before, marijuana remains an illicit drug in South Carolina. Using marijuana can greatly affect children and the outcome of a child custody case. Despite the growing recognition of cannabis products for their potential health benefits, cannabis products are not legally recognized to have health benefits and cannot be prescribed for medical purposes in South Carolina.

Hemp and Hemp-Derived Products Are Legal and Widely Available

The Agriculture Improvement Act of 2018 (sometimes referred to as the “Farm Bill”) made big changes for the hemp industry in the United States. First, the Farm Bill distinguished hemp plants from marijuana plants. The federal government no longer closely watches the growing, making, and selling of hemp and its seeds.

South Carolina also passed the Hemp Farming Act, which authorizes certain licensed individuals to cultivate, process, and handle hemp or hemp products.

Hemp and its products can now be sold between states as long as they contain a “delta-9 THC concentration of not more than 0.3% on a dry weight basis.” The result has been for these other cannabinoids to become more available for purchase.

CBD oil

Can a Judge Order Urine Drug Testing or Hair Follicle Testing?

Yes. S.C. Code Ann. Section 63-3-530(A)(26) grants the Family Court jurisdiction to order mental, physical, or psychiatric examinations as circumstances may warrant. This authority extends to requiring parties to a Family Court case to submit to drug testing, which can include urine drug tests, blood tests, fingernail tests, or a hair sample or follicle test.

Is CBD Legal in South Carolina?

Technically, yes, because it is hemp-derived, CBD products are legal to use in South Carolina as long as they do not have a delta-9 THC concentration of more than 0.3%. CBD isolate can be used to make things like CBD oil, creams, or even gummies.

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Be Careful: CBD Isolates Are Not Well-Regulated

Full spectrum CBD products include all the natural compounds found in the cannabis plant. Therefore, full spectrum CBD products may contain trace amounts of THC, which is the compound in cannabis that can make you feel high.

When trying to buy a CBD product that does not contain THC, here are a few steps you can take:

  1. Read the Label: Look for products labeled as “CBD isolate” or “THC-free.” These products typically contain pure CBD without any THC.
  2. Check Third-Party Lab Reports: Reputable CBD companies often provide third-party lab reports that detail the contents of their products, including the levels of CBD and THC. Look for products that have been tested by independent laboratories, and verify that the THC content is below the legal limit (usually 0.3% THC or less).
  3. Research the Brand: Look into the reputation and transparency of the brand you’re considering buying from. Choose companies that are transparent about their manufacturing processes and provide clear information about the contents of their products.
  4. Ask Questions: Don’t hesitate to reach out to the company directly and ask questions about their products. Inquire about their extraction methods, THC removal processes, and any other concerns you may have.
  5. Choose CBD Isolate: If you’re particularly concerned about THC, opt for products made with CBD isolate. CBD isolate is a pure form of CBD that does not contain any other cannabinoids, including THC.

Following these steps may make you feel more confident in purchasing a CBD product that is THC-free. However, CBD continues to be minimally regulated, and it can be almost impossible to really know what you are buying.

Male ready to self-dose CBD oil

CBD Can Cause a Positive Drug Test Result for Marijuana

Many people ask: “Can using CBD cause a false positive result for marijuana use?”

The answer is YES, but the result would be truly positive, not a “false positive.”

Because CBD isolates are not subject to strict regulation, it is incredibly likely the products purchased at gas stations or convenience stores contain trace amounts of THC, which would cause a positive result for THC metabolites on a drug test.

Delta-9 THC Products are Legal, but Should be Used Cautiously

Like CBD products, products claiming to contain only “delta-9 THC” are not subject to strict regulation or government oversight. Though they are legal to possess and use, it can be impossible to ensure you do not unintentionally ingest trace amounts of THC.

Woman self dosing CBD oil

Delta-8 THC Products are Not Legal in South Carolina

When South Carolina passed the Hemp Farming Act, it explicitly referred to the federal standards for regulation of hemp-derived products, which only reference the “delta-9 THC concentration” of products.

In response to an inquiry by the South Carolina Law Enforcement Division, the South Carolina Attorney General has stated that “any and all THC that is not ‘a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis’ is specifically prohibited…”

Further, delta-8 THC has psychoactive and intoxicating effects, and the FDA has received adverse event reports involving delta-8 THC-containing products.

Can Drug Test Results Separate Marijuana Metabolites from Delta-8 and Delta-9?

Standard urine tests typically do not differentiate between THC and CBD. These tests are designed to detect the presence of THC, the psychoactive compound found in cannabis, in a person’s urine system. However, CBD, which is another compound found in cannabis, may show up on standard drug tests and can cause false positive results.

Moreover, drug tests are not typically designed to specifically identify or distinguish between different cannabinoids, including CBD, delta-8-THC, and delta-9-THC in urine samples. Specialized laboratory tests may be able to differentiate between these compounds, but they are not commonly used in routine drug detection and screening test scenarios.

What if You Test Positive During a South Carolina Custody Case?

Because all of the chemistry surrounding THC products and the differences between them and CBD is so complicated, a positive test result for any drug metabolites can affect the outcome of your South Carolina custody case.

Sometimes, the Family Court may determine that any substance use that is not prescribed by a physician is the basis for a concern. Others may believe that because CBD and THC are derived from the same plant, then use of either product may be unsafe.

If there is detection of any substance, the Family Court may become worried that the children have been exposed to drug use or use of illegal drugs or that there are other safety concerns to be addressed.

Conclusion: Avoid Cannabis Use When Children’s Safety is a Concern

In child custody cases, any substance use, whether marijuana, CBD, or THC products, can raise concerns about children’s safety and well-being.

The only way to avoid failing a drug test during a child custody case is to avoid use of any substance that could cause a positive drug test or in false positives. The only way to ensure a negative result when drug testing is to completely avoid any use of marijuana, CBD, or THC products.

Clear communication with legal counsel and adherence to state laws regarding cannabis use are essential for navigating these complex issues effectively.