Colorado was the first state to legalize the use of recreational marijuana. That means it is no longer a crime to use or possess a certain amount of marijuana in your own home. But could a parent’s legal marijuana use affect their chances at child custody?
This blog post will review whether and how a parent’s legal marijuana use can affect their child custody case. It will examine Colorado laws for the allocation of parental responsibility, and will discuss whether a party can use the other parent’s legal marijuana use against them in court.
Child Custody Depends on Many Factors
An allocation of parental responsibility never comes down to just one thing. When a Colorado judge makes a decision about custody and parenting time, he or she is legally required to consider a number of factors:
- The parents’ wishes for parenting time
- The child’s independent and reasoned wishes for parenting time (if old enough)
- Interactions between parents, children, siblings, and others in the home
- The child’s adjustment to his or her home, school, and community
- The mental and physical health of all involved
- The ability (absent domestic violence or child abuse or neglect) of each parent to encourage a relationship between the child and the other parent
- The parents’ past patterns of involvement with the child
- How close the parents live to each other
- The parents’ ability to put their children’s needs before their own
Because of this, a parent’s legal marijuana use will not automatically destroy his or her claim for custody. But the court may consider it as part of determining the child’s best interests.
Drug Possession and Use and Child Abuse
Sometimes a parent can lose custody of his or her child without a petition from the other parent. For drugs other than marijuana, Colorado law considers it child abuse to “knowingly possesses ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers” with the intent to use the product to make a controlled substance in a child’s presence, or in their residence.
However, growing up to 6 marijuana plants is legal under Colorado law. That means that, just like the homebrewer who makes beer in his or her basement, the growth of marijuana (up to the legal limit) is no longer automatically considered child abuse.
Parent’s Legal Marijuana Use Could Affect the Child
The more difficult question facing family law attorneys and judges is whether a parent’s legal marijuana use negatively affects his or her ability to be a parent to the child. This issue came up in the medical marijuana context in the Colorado Court of Appeals decision In re: Marriage of Parr. In that case, the court said that a medical marijuana patient’s use of the drug outside his child’s presence did not endanger the child. The court said mere proof of use was not enough to suspend parenting time or cut off the father’s right to custody.
However, parents’ legal use of marijuana can sometimes affect their children, and their own ability to parent. Those who use for the purpose of getting high may find their decision-making skills inhibited. They may find it more difficult to properly supervise their child. If the parent develops a substance abuse problem, it may be hard for that parent to put the child’s needs before his or her own.
Children with asthma or allergies can also be harmed by a parent smoking marijuana or tobacco in the home. In addition, there is some scientific data suggesting that breathing secondhand marijuana smoke can have long-term effects on a child’s brain.
All of these details are factors a Colorado family court judge may consider when allocating parental responsibility. While parents may legally use marijuana, how they do it, how much, and whether the child is in their care at the time could all affect a judge’s decision about the best interests of the child.
Making the Case for Custody in Families with Marijuana Use
When parents disagree over the use of marijuana, it can become a wedge that pushes the parties further apart. When marijuana use is an issue in a custody case, parents may find it more difficult to agree on a parenting time schedule they can both be happy with. If you or your former partner regularly use marijuana, you may want to consider adding language to your parenting agreement:
- Prohibiting marijuana use while caring for the child
- Limiting the manner of use to non-smoking means
- Requiring all marijuana to be locked away during visitation
- Requiring drug tests to show the level of intoxication before parenting time exchanges
The level of safeguards needed for any given case depend on the circumstances, the severity of the marijuana use, and its effects on the child. There is no one right answer. If marijuana is an issue in your child custody matter, you should sit down with an experience family law attorney to understand how a parent’s legal marijuana use will — and won’t — affect the outcome of your case.
At Aviso Law, LLC, our child custody lawyers know how complicated marijuana issues can make cases for the allocation of parental responsibility. We don’t see these cases as black and white. Instead, we help our clients understand how their circumstances could affect their visitation, and develop strategies to reach a parenting time resolution that protects their relationship, and their children. Contact us today to schedule a consultation.