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New Colorado drug laws and child custody determinations


Although Colorado parents can legally use marijuana, they should understand that use of the substance may impact child custody orders during divorce.

Many parents preparing for divorce in Colorado have questions about the factors that affect child custody orders. Parents who support or oppose the state’s recent legalization of recreational marijuana may wonder how parents who use this substance fare when child custody is set. There is no simple answer, since several factors are considered during child custody disputes. However, parents should be aware that even legal substance use can affect custody outcomes and that most judges at least consider the impact of any drug use, legal or not.

An ongoing debate

Some parents may believe legal activities should have little bearing on child custody cases. However, marijuana is still considered a Schedule I drug under federal law and it can pose a danger to children if it is used irresponsibly, according to The Washington Post. Therefore, a judge could view the use of the substance negatively when determining custody arrangements.

One precedent suggests that limited marijuana use cannot serve as the sole ground for denial of custody. In 2010, a Colorado appeals court ruled that a father should not be denied visitation rights on the basis of his marijuana use, since he never used the substance around his child. Of course, a judge could still factor in use of the substance, along with other potential concerns, when making the decision to limit or deny a parent’s custody rights. The critical factor is whether the drug use in question impacts that parent’s ability to effectively provide care for their child or children.

According to CNN, nationally, parental use of medical marijuana has led to mixed outcomes in custody and welfare cases. This may be due to limited understanding of how parental marijuana use impacts children. No studies have established how marijuana affects parenting ability, and there is little evidence that using the substance will always make someone an unfit parent. At the same time, there are obvious potential risks for children when parents make careless decisions about using the substance.

Colorado legislators recently considered a proposal that would have established guidelines governing how parental marijuana use affects child custody and welfare decisions, according to The Washington Post. However, the proposal failed to pass, which means judges still have a great deal of discretion in making custody decisions.

General custody considerations

In general, parents should remember that numerous perfectly legal activities can affect custody determinations during a divorce. A judge will evaluate all of the following things for each parent:

  • Behavior and overall lifestyle.
  • Ability to provide a stable environment.
  • Willingness to put the child’s needs before personal needs.
  • Ability to encourage the child to maintain a relationship with the other parent.

Parents who have concerns about the other parent’s lifestyle may be able to bring the issue up when custody is settled. Parents who use legal substances, whether rarely or regularly, should remember that their habits might be called into question when custody is decided. For parents concerned with winning custody, eliminating any questionable activities is usually the best approach.

Any parents with concerns about custody and the factors that affect it can benefit from meeting with a family law attorney. An attorney can help a parent understand the relevant laws and improve his or her likelihood of winning a favorable custody arrangement. Bottom line: you may have to decide which is more important. Is it more important to use marijuana or to have custody of your children?

Keywords: Child custody, divorce, visitation