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Can A Parent's Legal Marijuana Use Impact A Child Custody Case?

Colorado Amendment 64 made it legal for adults 21 and older to grow, purchase, possess and smoke marijuana. However, just because marijuana use is no longer criminal does not mean there are no legal ramifications. Parents must be aware that marijuana use has the potential to impact their child custody case.

Is It In The Best Interest Of The Child?

The law does not yet offer any specific guidelines about how a parent's legal use of marijuana should be addressed in terms of child custody and parenting time. Under Colorado law, parenting plans are to be created based on the best interest of the child. If one parent uses marijuana recreationally or even for medical purposes, the other parent may argue that being around that parent is not in the child's best interest. Furthermore, if the parent's marijuana use has led to problems elsewhere in his or her life, such as job loss or financial difficulties, that may be presented by the other parent to gain an advantage in the case.

Consider the parallel with alcohol. While drinking is perfectly legal, parents who drink frequently or go out to bars regularly tend to find that this comes up during child custody disputes and it can end up working against them.

Is It Child Endangerment Or Abuse?

The other parent may go so far as to argue that being around the parent who smokes marijuana actually constitutes child endangerment or abuse. Is the parent smoking marijuana while in the child's presence, exposing the child to secondhand marijuana smoke? Does the parent have marijuana edibles that look like candy or desserts out where the child could see them and possibly consume them? These are some examples of the serious concerns that could lead to allegations of child endangerment or abuse.

It is important to keep in mind that proving child endangerment or abuse in a civil case is quite a bit different than doing so in a criminal case. In a criminal case, guilt must be proven beyond a reasonable doubt. Not so in civil cases. In these cases, the standard is proof by preponderance of evidence. This is a lower standard, and thus easier to meet. Basically, the opposing party must simply present enough evidence to convince the court that it is more likely than not that child abuse or endangerment occurred.

Consult With An Attorney

If you are involved in a child custody dispute in which you or the other parent uses marijuana legally, you can benefit from the representation of an experienced attorney who is at the forefront of these new legal developments. At Scardina Family Law, we can help with even the most complex child custody cases.

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