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Marijuana and Parenting Time

It is no secret–Colorado is one of the national leaders in the legalization of both the medicinal and
recreational use of marijuana. Colorado family law attorneys are commonly asked what effect the
legalization of marijuana has had in custody (parenting time) cases.

While Colorado is full of rules, regulations, and legislation around legalized marijuana, the legislature has
given little guidance when it comes to marijuana and child custody cases. As a result, the impact of the
legalization of marijuana on parenting time issues has been left in the hands of the Colorado Courts and
Judges.

At the outset, when a Colorado Judge makes a decision about parenting time, they are required to
consider a list of factors that are commonly called the “best interests” factors. These factors are listed in
Colorado Revised Statute § 14-10-124, and parenting time is not determined by a single factor, but
rather by a consideration of all the factors combined.

In effect, Colorado Judges have wide discretion when deciding whether a parent’s marijuana use will
affect the custody of their children. Thus far, Colorado Judges usually evaluate marijuana use much like
other legal drugs, medicines, and alcohol. The bottom line that a Judge must decide whether the use of
marijuana (medical or recreational) constitutes a threat to the physical and/or emotional health and
safety of the child(ren). See In re Marriage of Parr, 240 P.3d 509 (Colo.App.2010). In other words, a
parent’s marijuana use is reviewed on a case-by-case basis, where the Judges make highly individualized
determinations.

Some evidence that Judges review is whether the marijuana user’s decision-making skills become so
hindered that they are unable to safely parent the child(ren). Some Judges have also evaluated whether
a child’s health, such as asthma, can be harmed by secondhand smoke. When evaluating a claim of
marijuana use, most judges consider whether the child is present during the use, how much is used, and
the effects of the use on the user.

Another issue is that Coloradans are now allowed to grow marijuana in the confines of their home. This
is similar to the homebrewer who makes beer in his or her basement. Again, Judges must consider these
marijuana grows on a case-by-case basis. Judges usually consider where in the home the grow is located,
what access the child has to the grow, and the child's age.

When it comes to marijuana and child custody, Burnham Law has a track record of success. Our lawyers
have been successful in convincing Judges that an opposing parent’s marijuana use, although legal, was
a dangerous condition for the child. On the other hand, Burnham Law has also been successful in
showing Judges that their clients’ use of marijuana was not a dangerous condition to the child and
therefore non-determinative to the parenting time decision.

Our success comes down to evidence-gathering and strategic litigation. Our legal team gathers the
proper evidence and then provides the Judge with a clear picture of the effects of marijuana use. The
mere fact that a client or opposing parent uses marijuana is not dispositive. The Judges must have
specific evidence that does not involve generalities but is particular to the parties in the case. At
Burnham Law, we understand that each situation has its own nuances. These nuances are what Judges
must have so that they can make sound decisions that are in the best interests of the child.

Child custody cases that involve marijuana are a specialized area of law that not every family law
attorney has experience in practicing. If you or a loved one’s child custody case involves marijuana,
contact the lawyers at Burnham Law to have an experienced legal team on your side.

How can we help?

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Heidi
Whitaker

Partner - Domestic Relations

Fort Collins

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