Will Amendment 64 Affect Child Custody Cases in Colorado?

As most Colorado residents know, recreational marijuana use was approved via Amendment 64 last fall. The status of marijuana in noncriminal matters, however, remains ambiguous. How will Amendment 64 be implemented? A task force was set up to recommend positions that lawmakers should take about marijuana regulation. The force did not offer a recommendation about how marijuana use should be handled in a child custody case. This could prove problematic in certain cases, but for the most part child custody cases will continue to function as before.

If a parent is not participating wisely in parenting a child, his or her poor decisions will affect the custody arrangements made by the court irrespective of whether marijuana use has influenced those decisions. For example, if a father is too busy with a grow operation and getting high to make sure a child is getting to school or taking his or her medications, his parenting decisions will be scrutinized irrespective of marijuana’s legality.

Medicinal marijuana has actually been an issue in family law cases for several years. Many parents have reported another parent’s marijuana use to the court in order to get the second parent in trouble. It seems clear that many people do feel marijuana use by a parent is more of a problem than drinking a glass of wine or smoking a cigarette, even though marijuana is now legal. Denver Judge Karen Ashby has noted that medical marijuana has been treated no differently over time than other substances. A parent who smokes a joint after dinner may not be treated differently than a parent who drinks a glass of wine over dinner. Both marijuana and alcohol are likely to be considered on a case-by-case basis now that both are legal substances.

Certain experts have stated they do not think that additional guidelines are necessary. Spokeswoman for Denver Human Services Revekka Balancier explained that Colorado courts look at whether a parent can keep a child safe. Marijuana use in and of itself does not affect a parent’s ability to secure a child’s safety. Balancier had received many calls about fitness of parents as it related to marijuana use since the passage of Amendment 64. She noted that if somebody called simply to report a parent for using, her department wouldn’t investigate. She noted that the practices for keeping children safe were the same irrespective of the legality of marijuana or any other substance.

In all child Colorado custody disputes, the court looks at the best interests of the child. Generally, Colorado courts believe children are best off when they have frequent contact with both parents and have both parents participate in bringing them up. Amendment 64 may not affect the way the court applies best interest factors. Among the best interest factors are health and safety, emotional and developmental needs, and a parent’s willingness to allow the other parent to participate in the child’s life.

Some health and safety issues that will concern a court are a parent’s domestic violence, abuse or neglect. In certain cases, visitation will need to be supervised. Only in extreme case would a parent be denied contact entirely. Marijuana is not considered a dangerous health and safety issue per se, but as with the example above, a parent who smokes large quantities of marijuana and therefore misses doctor appointments or routinely drives their child to activities while high may be treated differently than a parent who smokes inside the home at night before going to sleep. A child’s safety might considered to be affected in the former situation but not the latter.

Colorado courts also believe it is important to prevent impairments to a child’s emotional development. Parents are expected to put their children’s needs above their own and courts will consider the extent to which a parent has provided a child with emotional support. A parent’s recreational marijuana use typically doesn’t have an impact on a parent’s ability to support children. It is unlikely to affect this factor unless the other parent can point to instances in which marijuana use adversely affected a parent’s ability to interact and participate in the child’s upbringing. For example, a parent dealing with a teen with a serious drug addiction problem may need to consider how his or her marijuana use impacts that teen. The other parent may expect that both parents support the teen’s recovery efforts by refraining from drug use. In such instances, the court’s analysis may be more complex.

Parents are sometimes required to attend parenting classes to get a sense of how their separation and divorce will impact their children and get advice about how to co-parent in spite of their divorce. Parents can develop their own parenting arrangements. We can foresee that there may be instances in which parents disagree about proper boundaries for marijuana use, cultivation or sale. If parents still can’t agree after mediation, a judge will consider parent’s arguments and develop a plan for them.

Our experienced divorce lawyers approach each case from an holistic standpoint. We understand that different Colorado individuals perceive marijuana use differently and that this may be a sensitive issue for some parents, particularly parents of teenagers. Contact us at 303-781-0322 or by completing a case evaluation form.