Marijuana Use and Parenting Time

Posted By Jorgensen, Brownell & Pepin, P.C.

24 Sep. 2015

On November 6, 2012, Coloradans voted and passed Amendment 64 allowing for the limited use, possession and home growing of marijuana by individuals over the age of 21. So what does Amendment 64 mean when you are trying to determine parenting time and child custody rights in a divorce? Does the use of marijuana automatically mean you can’t parent?

“Parenting under the influence” is always an issue. Whether it’s alcohol, marijuana or some other controlled substance or drug, restrictions can be placed upon a parent by the court. In Washington State, where there are similar laws regarding marijuana use and possession, the courts have found that “the dangers inherent in marijuana use do not turn on whether or not the use is sanctioned by the State.” The same Washington court found that just because an individual was allowed to use marijuana for medical purposes under the law, does not mean that the use isn’t detrimental to his children.[1]

Here in Colorado, courts can generally make, or modify orders for parenting time rights whenever that change or order will be in the best interests of the child.[2]

In 2010, an El Paso County judge restricted a father’s parenting time because of his marijuana use. Additionally, because the father signed a parenting plan that required him to submit to urine screens, the court also ordered that he continue to submit to screens to see if he was still using marijuana. Once the father received his medical marijuana license, he appealed the court’s ruling saying that the court made an error by restricting his parenting time in addition to the urinalysis requirements.[3]

The Colorado Court of Appeals found that the original court failed to make a finding or ruling that the father’s conduct endangered the child physically or impaired her emotional development. The Court also stated that the restriction was based solely on the father’s marijuana use, but there was nothing in that showed that the marijuana use as a threat to the safety or physical or emotional health of his child. The Court of Appeals stated that the use of marijuana alone was not enough to restrict parenting time.

This ruling from the Court of Appeals follows the law that determines modifications of parenting time. The law says that the court “shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development.” The law goes on to say that in addition to making a finding of endangerment, the court has to list out specific facts that were used to support their finding of endangerment.[4]

These laws and rulings by the courts are the same ones that were in effect before Amendment 64 was passed. Because there are no new laws in place specific to parenting time and marijuana use, the Courts are going to keep looking at parenting time on a case by case basis.

[1] In re Marriage of Wieldraayer, 2008 Wash. App. LEXIS 2916 (Wash. Ct. App. Dec. 22, 2008)

[2] Colorado Revised Statutes § 14-10-129(1)(a)(I)

[3] In re Marriage of Parr, 240 P.3d 509, 2010 Colo. App. LEXIS 691 (Colo. Ct. App. 2010)

[4] Colorado Revised Statutes § 14-10-129(1)(b)(I)

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