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  • William Ellison

Marijuana and its legal effect on Divorce, Child Custody, and Parenting Time in Colorado

DISCLAIMER: The following is a general observation not legal advice. You should consult a lawyer to determine how this topic will affect your case. No lawyer can provide advice without knowing the facts specific to your case.


Question: Marijuana is legal in Colorado, will using marijuana affect me in divorce or child custody?


Are you hearing your spouse threaten to use your cannabis use against you? We’re lucky to live in a state with sensible cannabis regulation. I say cannabis, because Colorado regulates cannabis differently depending on if it falls under the definition of hemp cannabis or marijuana cannabis. But that’s for another post.

If you have no kids, cannabis use really has little bearing on your divorce. Colorado is a “no fault” divorce state. This means you don’t need a reason to get divorced and “bad” behavior in the marriage by one or both spouses doesn’t have bearing on the divorce (unless that bad behavior is hiding assets from the spouse and court). A divorce without children just divides up property equitably (note that doesn’t say equally) and decides if either spouse is owed maintenance. Cannabis use is similar to allegations of use of other substances like alcohol or prescription drugs. There’s no place for these issues to fit in when children aren’t involved. But when children get involved, everything changes…


Can marijuana use affect child custody (parental responsibilities)?


The easy answer here is yes, but the tougher questions are will it and how much? Here’s the good news: it’s unlikely your cannabis use will have a large impact on the amount of parenting time you are awarded. In at least one case, the Colorado Court of Appeals has found that just using medical marijuana does not mean a child is necessarily endangered, physically or emotionally, by time with that parent. In re Marriage of Parr & Lyman, 240 P.3d 509, 512 (Colo. App. 2010).


When analyzing allocation of parenting time and parental decision-making responsibilities, the court employs the “best interests of the child” standard. This standard is defined by statute (C.R.S. § 14-10-124) and involves multiple factors that encompass pretty much anything that impacts a parent’s ability to parent or have a healthy, productive relationship with their child. So if there’s an argument to be made that your cannabis use affects your relationship with your child in anyway, then it could factor into the judge’s decision on your parenting time. But cannabis use is not unlike any other activity that could arguably have some effect on your relationship with your child, like the time you devote to your career, or pornography use, or an obsessive drive to climb all 53 fourteeners in record time. Really anywhere there is an argument to be made, it can be made. You’re smart to be on the lookout for factors your spouse might use against you, and you should be sure to point these out to your lawyer.


How much does marijuana use matter to child custody?


Here’s the typical lawyer response, it depends on the facts of your case. It’s hard to know how much or how little it matters, because issues related to what is in the best interests of the child are always arguable. If you’re an average daily user, it probably doesn’t factor in heavily, except that your spouse will likely be able to get an order that you cannot use cannabis while exercising parenting time. But if you had a car accident with your child in your car and were convicted of driving under the influence of marijuana, it probably will play a role.


What’s the most likely result of marijuana use on child custody?


The likely effect of cannabis use on your parenting time or decision making will be that your spouse will get a provision in your Parenting Plan stating you can’t use marijuana during or for a certain time prior to having parenting time with your child. This is typically what a spouse will ask for when concerned about some sort of behavior affecting the child. If you’re arguing parenting time at a hearing, this can all be dependent upon the judge’s views and preconceptions about marijuana use as well. If your situation is more akin to my extreme car accident example above, you can expect your spouse’s lawyer to argue you should be prohibited from using marijuana and subject to urinary analysis confirming you’re not before you are allowed any parenting time involving driving the child.


What should I do now to keep marijuana use from being used against me in child custody?


Exercise responsible use and possession now to keep it from becoming an issue. Follow possession laws closely. Keep cannabis locked away from children. If you grow plants, keep them in a locked room inaccessible to the children (this is required by statute anyway). Keep cannabis in marked and child-proof containers. Avoid discussing your cannabis use with your children or openly using cannabis in front of your children. Your children are witnesses to your parenting and they can be asked about your cannabis use later by a Child and Family Investigator (CFI), if one is appointed. You don’t want a judge reading a report from a CFI where your child states he/she knows where your cannabis is and how to access it.


Closing Thoughts

Since legalization in Colorado over four years ago, we’ve all realized that marijuana just sits there innocuously in its container on the top shelf of the pantry, just like alcohol. But just like alcohol and firearms, parents should demonstrate responsible possession to the court.