Explanation: This is a simple question without a simple answer. Legalization of medical marijuana in Colorado is new and therefore, there is little to no precedent to go on.
Custody is determined in Colorado using the “best interests of the child” standard. There is no formula the Court uses to determine what custody arrangement is in the best interests of the child. Rather, the Court looks at any and all factors relevant the child’s upbringing including, whether a particular custody arrangement “would endanger the child's physical health or significantly impair the child's emotional development.” See In re Marriage of Hatton, 160 P.3d 326, 332 (Colo. App. 2007); In re Marriage of Fickling, 100 P.3d 571, 573 (Colo. App. 2004). Courts are free to impose conditions on the exercise of parenting time, such as refraining from marijuana use, even if the parent is a valid medical marijuana card holder. People in Interest of A.R.D., 43 P.3d 632, 636 (Colo. App. 2001); In re Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010); In re Marriage of Finer, 920 P.2d 325, 333 (Colo. App. 1996). Every case is different, therefore the Courts recognize what constitutes endangerment to a particular child's physical or emotional health is a highly individualized determination. In re Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010);
Courts in Colorado have restricted parenting time based on the fact that one parent holds a medical marijuana card. Because trial court opinions are not published, it is not possible to know how many courts have ruled which way, and whether any particular Court would rule a particular way. What is known is, if you are a medical marijuana user, it will come up in a custody hearing and you will have a tough burden to prove that the marijuana use will not endanger the child’s physical health or significantly impair the child’s emotional development. It is important to know that you are not going to be presumed to be a responsible caregiver simply because you are acting within your legal rights to use marijuana. Look at it this way: You have a constitutional right to free speech. But if your habitual use of foul language and yelling will endanger the child’s emotional health, you could lose custody rights. As one judge in Washington State put it, "There's nothing in the medical marijuana law that deprives the court of its responsibility and legal authority to provide for proper care of children so that people aren't caring for children who are under the influence of alcohol or drugs." See Medical Marijuana Can Cost Parents Custody, found at http://www.cbsnews.com/stories/2010/06/21/national/main6602698.shtml. If you want to be on the safe side, you might look into other avenues of pain management.
If you have a custody question involving medical marijuana use, you will want the best representation. Contact me through www.taibolaw.com or via telephone at (303) 653-2509.
