Can a parent’s legal marijuana use affect custody and visitation in CO?

Divorcing Colorado parents should understand how marijuana use may affect custody and parenting time decisions, based on state law and recent precedents.

The factors that are taken into account when child custody and visitation decisions are made in Colorado can be complex, as many Denver residents know firsthand. For some parents, the state's legalization of marijuana has added an additional facet to this already complicated issue. Although recreational marijuana use is no longer a crime, parents should be aware that it still has the potential to significantly affect decisions regarding child custody and parenting time.

Relevant precedents

Before recreational use of marijuana was legalized, Colorado courts already had weighed whether medicinal marijuana use should affect a parent's visitation rights. According to The Delaware News Journal, a county court considered the case of one father who used medicinal marijuana in 2010. Although the man never took the drug in his daughter's presence, the court ruled that he was not eligible for unsupervised parenting time unless he could pass a drug test.

An appeals court later reversed this decision, contending that a parent's use of marijuana outside the presence of his or her children does not clearly endanger the children. However, courts may take a different view of cases in which marijuana use isn't medicinal or the parent who uses the drug is seeking custody. Furthermore, although this case may serve as a precedent, family law judges still have discretion to make unique decisions based on the factual circumstances of each case.

Best interests standard

When family law judges create parenting plans, which stipulate how parents will share custody and parenting time, they must identify the arrangement that is in the best interests of the child. In Colorado, judges may consider various factors to reach this decision, including:

  • The mental and physical health of both parents
  • The ability of each parent to set aside personal needs to accommodate the child's needs
  • Each parent's ability to provide the child with a positive, supportive relationship

As The Delaware News Journal notes, the legal status of marijuana does not prevent a parent's use of the drug from being weighed as evidence during custody cases. A judge may make inferences about the criteria above and other criteria based on a parent's decision to use marijuana.

Relatedly, family law courts in Colorado are required to consider allegations of the abuse of any substance, whether it is legal or not, when awarding custody and parenting time. To protect the best interests of the child in these cases, the court must err on the side of caution, potentially by limiting a parent's decision-making responsibility or unsupervised parenting time. Therefore, a parent who has been accused of abusing marijuana may need to prove he or she doesn't suffer from a substance abuse problem in order to receive custody or unsupervised parenting time.

Making the case for custody

These issues underscore the complex nature of child custody and visitation decisions, along with the impacts that various parental behaviors can have on these decisions. Given these issues, it is crucial for parents who are worried about receiving custody or visitation to consider seeking legal advice. Parents with concerns about the other parent's ability to support the best interests of their children should also consider speaking to an attorney. An attorney may be able to offer advice on applicable laws and precedents or assist a parent in pursuing an appropriate parenting plan.