The impact of recreational marijuana on child custody

January 1st was a bigger than normal New Year's Day in Colorado-the voter-approved Amendment 64 became reality and Colorado became the first state in the country to allow recreational marijuana stores. Under the new law, private possession by a person 21 or older of up to one ounce of pot is without penalty. There is similarly no penalty for growing up to six marijuana plants, with no more than three being mature. Transfer of one ounce or less when nothing of value changes hands is likewise penalty-free. Colorado residents can now buy pot the same way they buy alcohol.

One question that is beginning to pop up is how legal marijuana consumption will impact child custody cases.

Controlled substances and child custody

Before examining that question, it is important to point out Colorado law as it relates to drugs other than marijuana. For example, Colorado law considers it child abuse for a person to "knowingly possesses ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers" with the intent to use the product in the manufacture of a controlled substance in the presence of a child, in a premises where a child resides or is found, or in a vehicle containing the child. It is no defense that the person was not aware that a child was present or that a child could be found or resided on the premises. Child abuse is also defined to include any case in which, in the presence of a child, or on the premises where a child is found or resides, certain controlled substances are manufactured or attempted to be manufactured. Such actions are child abuse per se.

Marijuana and child custody

With respect to possession of or use of marijuana, a spokesperson for the Denver Department of Human Services has stated that the Department has received numerous calls about marijuana consumption since Amendment 64 was passed is that her response has remained the same: "What we're looking for is whether or not substance abuse is affecting that parent's ability to keep the children safe. In most cases if someone calls us with a report that a parent is using and that is the only allegation it wouldn't warrant an investigation."

This approach is entirely consistent with guidelines set forth by the Colorado Court of Appeals. In the case of Marriage of Parr, the Colorado Court of Appeals held that a father's use of medical marijuana could not support a restriction on his parenting time, without a showing that his use of marijuana represented a threat to the physical and emotional health and safety of his child, or otherwise suggested any risk of harm. In other words, there must be a showing of child endangerment.

Anyone facing a child custody dispute where drug use, marijuana or otherwise, may be involved should seek the advice of an experienced Colorado family law attorney to adequately evaluate the circumstances.