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Marijuana and Its Legal Effect on Child Custody in Colorado


Colorado essentially legalized the use of marijuana for those over the age of 21 in 2012, with some complex laws regulating its legal usage. When divorces between childless spouses take place in Colorado, marijuana use by one or both spouses has no impact on the divorce. However, when parents divorce in Colorado, one parent’s use of marijuana may impact the amount of parenting time awarded to that parent. Because the state lacks clear guidelines and family court judges have the duty to prioritize a child’s best interests in all decisions, the impact of marijuana on the judge’s decision often depends on what the judge feels is or is not in the best interests of the child.

Can Colorado Courts Discriminate Against Parents Who Use Marijuana?

Custody cases involving marijuana usage by a parent are complicated due to a lack of legal standards. As of yet, Colorado has no laws in place to protect parents who use marijuana from discrimination in custody cases. The matter is further complicated by existing laws that consider the possession of specific narcotics or their components with the intent to manufacture in the presence of a child, or in the same residence as a child, as child abuse. However, Colorado laws allow residents to grow up to six marijuana plants in their residence. If marijuana usage becomes a factor in a contested custody case, it’s likely that both sides will argue this conflicting point.

Because what’s considered in a child’s best interests is always arguable and rebuttable in court, if a parent uses marijuana regularly, it’s important for that parent to be honest with their child custody lawyer in Fort Collins about their usage before going to court.

Considering a Parent’s History in Colorado Custody Cases

If parents are unable to come to a mutual agreement on the division of their parenting time, the court must decide for them. If spouses are contentious on this issue and one parent uses marijuana regularly, it’s almost certain to be a factor in the other spouse’s argument. However, whether or not a judge considers marijuana usage as a deciding factor in a child custody decision depends on the parent’s history and whether or not the marijuana usage impacts the child. For example:

  • Has the parent ever had a DUI?
  • Were the children with the parent in the vehicle when the DUI occurred?
  • Does the child have asthma or another condition that may be aggravated by the parent’s marijuana usage?
  • Does a parent have a documented history of child neglect associated with addiction or use of addictive substances?

Because judges make all decisions in a child’s best interests, any history of negative consequences to a child associated with a parent’s marijuana use could impact the judge’s decision.

Adding Important Language to a Custody Agreement When a Parent Uses Marijuana

Whether you use marijuana, or you are arguing for a greater allotment of parenting time due to a spouse’s usage, adding specific language to take the use into consideration in the parenting agreement can help. This may mean adding specific conditions such as the following:

  • One parent adds a provision in the parenting plan prohibiting the other from using marijuana during their parenting time
  • A parent may only use edibles and non-smoking cannabis products during their custody so the children don’t face the impacts of second-hand smoke
  • The parent must lock all substances and paraphernalia away from children while they are in their custody
  • In cases of a parent with a history of addiction, DUI, or child neglect due to substance use, one parent could require that the other pass a drug test before making child exchanges

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The Importance of Demonstrating Responsible Possession

A growing majority of Colorado judges now recognize a parent’s marijuana possession as similar to having alcohol in the home. If a parent demonstrates responsible possession and usage in their home, it’s far less likely that it will impact the judge’s decision on parenting time.

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