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Family & Divorce Law

Medical Marijuana & Child Custody

By Tolison & Williams / December 10, 2019

The State of Colorado legalized medical marijuana usage back in 2000. However, despite significant improvements in the overall legislature, the rules surrounding child custody in Colorado and parent usage still have a lot of gray areas.

Due to the lack of clear guidelines, most Colorado judges exercise their discretion to determine whether a parent's marijuana usage should be seen as a factor affecting custody and parenting time or not. This, in turn, can result in unexpected outcomes for parents who seek more time with their children.

In this post, we’ll provide general guidelines for parents preparing for a custody battle.

How Child Custody Decisions Are Made in Colorado

If your custody case goes to court, Colorado judges will make the final ruling according to "the best interests of the child." In other words, they will take into account different factors to determine whether a parent is fit to care for the child and at what capacity. Specifically, most courts will consider:

  • Current interactions between the parents, children, and other members of the household.
  • Child’s personal wishes for parenting time (if old enough).
  • Parents’ wishes for parenting time allocation.
  • Each parents’ past parenting involvement with the child.
  • The ability of each of the parents to commit time and resources to the child.
  • Mental and physical health of both parents, among other factors.

The last point concerning health is not determinant. However, it can affect the success of the parent’s custodial claims. Below are two legal precedents to further illustrate the possible outcomes. 

Will Medical Marijuana Usage Affect Your Allocation of Parental Responsibilities?

Unfortunately, there's no clear answer to that. Despite medical marijuana legal status in Colorado, it is still viewed as a restricted substance on a federal level. Additionally, your usage can be weighed as evidence during custody proceedings. Thus, it's vital to seek legal counsel early to ensure that your legal medical marijuana usage isn't turned against you by the other party out of spite.

One recent precedent from the Colorado Court of Appeals shows that the father’s responsible usage of medical marijuana wasn’t viewed as a sufficient ground for suspending his parenting time or revoking custody. The other parent's motion to prove otherwise was dismissed.  

On the other hand, the California Court of Appeal removed one parent from custody due to his repeated usage of medical marijuana in front of the children. His behavior was deemed as unsafe as it created harmful second-hand smoke for the children. Thus, the court sided with the other parent and limited the father's parental responsibilities to supervised visitation only. It's important to note, however, that medical marijuana usage was not the central issue in this case. The parent was also found guilty of domestic abuse and struggled with additional mental and physical issues.

In either context, the court's custody decisions were based on several different factors and thorough investigations. The parent's medical marijuana usage was viewed in the context of other behaviors, and the outcomes reflect that.

Nonetheless, custody cases involving marijuana usage are always complicated. With no laws in place prohibiting discrimination against such parents, having an experienced attorney at your side is essential to ensure that your rights regarding parental time allocation are not mistreated. Contact Tolison & Williams to understand how your circumstances could affect your visitation rights and custody claims.

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Tags: Family Law Child Custody

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