Marijuana Use in Custody Battles

In many ways, Colorado is a testing ground for the expansion of marijuana use and many other states are watching closely to see how legalization affects cases like driving under the influence, underage drug use, robbery and violent crimes, and child custody fights. Both sides of the recreational use battle have their opinions and come armed with early studies, but there is, as yet, no clear study on the impact the new laws are having on society.

Marijuana Legality

In Colorado family law cases, lawyers have been dealing with recreational marijuana use for years. What’s new for these attorneys and judges is that it’s now legal activity and not so easy to bar outright. There’s no doubt that a parent’s recreational use of legal marijuana complicates parenting time disputes – much the same as the use of alcohol can – but because a judge is charged with determining the “best interests” of the child in these disputes in Colorado, their own personal views of Colorado’s liberal marijuana laws can greatly impact their orders.

The difficulty is that this otherwise legal activity may not be in the best interests of the children. It’s legal to drink alcohol excessively in the privacy of your own home and in the presence your kids, but it may very well be that a court determines your excessive use of alcohol impacts your ability to parent and that the other, sober, parent would be a better choice for that parenting time.

The Best Interest of the Child

The same is true with the legal use of marijuana. Exposing the children to marijuana use, or your own excessive use might be used by a court when considering the best interests of the child with the result being more time being award to the other parent.

Banning Marijuana Use in the Home

A court can also order you to abstain from otherwise legal activity if it determines that activity adversely impacts the best interests of the children. For example, courts have ordered parents not to smoke around children with health issues, drink during parenting time, relocate, change schools, change doctors, and even ordered parents not to engage in relationships with certain people. Of course, if you don’t want to have parenting time with your kids, then the court may lack jurisdiction to enter these types of orders, but because most parents will do anything to preserve time with their kids, compliance with these orders becomes a huge issue.

When I see a parent take the stand in a court proceeding and tell the judge, “hey, it’s legal now and I’ll smoke if I want to,” I cringe as a sly smile creeps across the judge’s face. We’re about to see some restrictive orders coming out, which probably include a hair follicle test for a baseline, random urinalysis, direct reporting of results to the court and an immediate suspension of parenting time upon a positive urinalysis result.

In cases that can be controversial or highly contested, it’s critical that you have an attorney who can advise and prepare you. If you, or a loved one, need assistance with this type of case, or any family law matter, please call our office to set up a consultation with one of our divorce lawyers in Denver.