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Marijuana and Child Custody

Updated: Jun 7, 2020

It's been 20 years since Colorado first passed Amendment 20, but courts still vary in their responses to cases involving "parenting under the influence".

While a divorce case is pending, the parties' daughter tells her high school counselor that her dad is "high all the time". The school makes a mandatory report to the Colorado Department of Human Services and the family court judge subsequently orders dad to undergo drug testing. The test comes back positive for marijuana. Dad demonstrates to the Court that he has obtained a medical marijuana registry identification card from the Colorado Department of Public Health. He reports that his doctor prescribed marijuana to treat chronic leg pain resulting from a car accident eight years ago. What effect, if any, will these facts have on the Court's ruling regarding primary residential custody, parenting time and decision-making??

Research data regarding the therapeutic dosage for medicinal plants like marijuana is limited. The quantity of THC in cannabis products can vary quite significantly and unpredictably. How can courts make informed decisions about whether a parent is using too much?

In the past, the discovery of marijuana use by a parent led to fairly predictable results in Colorado courts. There would be orders for supervised parenting time, often accompanied by orders to undergo addiction counseling and submit to periodic drug testing. However, the legalization of marijuana in Colorado and its widespread recreational use has significantly altered the legal landscape.

In general, the appropriate use of alcohol and prescription medications, including narcotics or other mood-altering drugs, is more or less disregarded by Colorado courts when issuing child custody orders. While some judges continue to treat marijuana differently, the majority are not particularly interested in evidence of occasional or moderate use of cannabis by a parent. A history of illegal substance abuse, an accumulation of DUIs or drug-related criminal offenses may result in some restrictions on parenting, such as not being allowed to transport the child by car, but unless a clear danger to the child's safety can be articulated, most Colorado courts will not distinguish between a sober parent over one that consumes cannabis in moderation. Most courts will specify that marijuana not be used in the presence of the children and that it must be stored securely out of the reach of children at all times.

Parties can agree to further restrict their children's exposure to alcohol or marijuana. This can be particularly helpful to protect curious teenagers, or those who may already be struggling with addiction and need a sober living environment to thrive. Ask your attorney or divorce mediator for suggestions about specific provisions you can use in your parenting plan.

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