Parenting and pot: Colorado divorce lawyers’ perspective on marijuana legalization
Jake and Emily Smith have three children: Kristin, age 9, Austin, age 7, and Olivia, age 4. The Smiths (a hypothetical family for the sake of this commentary) appear to be the perfect family — happily married for 12 years, a stay-at-home mom, a lovely suburban home, two shiny new cars, and cute kids.
There’s only one problem: Three to four nights a week, Jake quietly steps into the backyard or the basement to smoke a joint. Emily has never approved of his marijuana use, and as the children get older, she has increasing concerns about their exposure to Jake.
Jake says: “What’s the big deal, honey? It’s legal in Colorado now. You don’t hear me complaining when you have a few glasses of wine after dinner.”
The final straw comes when Jake decides to make some extra money to pay down credit card bills (the perfect family vacation to Hawaii is expensive, after all) by starting a small grow operation in his basement to sell marijuana to medical and retail locations. Emily files for divorce — and she doesn’t want Jake to have the children at all because she believes that the grow operation and Jake’s recreational marijuana use are dangerous to them.
What happens to parenting when pot is involved?
On Nov. 6, the voters in Colorado legalized individual possession and use of marijuana. The new amendment states that individuals can purchase marijuana from retail locations and that licensed growers can produce commercial quantities of marijuana for retailers. Colorado — already known as the medical marijuana state — and Washington State are the first states to legalize recreational use of the drug.
What will the federal government do (given that marijuana is still illegal at the national level)? How will employers regulate their employees’ legal drug use? What about tourists coming to Colorado to buy marijuana? How will the licensure process work for the sale of the drug?
What nobody is talking about is how the legalization of marijuana affects families, in particular families dealing with divorce.
Drug use has always been an issue in divorce and parenting cases. Historically, it’s been fairly easy to take a case to court with proof that a parent is illegally using drugs and limit that parent’s contact with the children. That all changed on Nov. 6, when Colorado state law legalized marijuana use. The courts do not routinely take children away from a parent because that parent legally consumes a reasonable quantity of alcohol, a legal substance. Will the courts take the same approach with marijuana?
Nobody knows. On the one hand, judges tend to represent a more conservative demographic and may continue to be shocked by recreational marijuana use by a parent, particularly during parenting time, after the children are in bed or while they are in school. But the intention of the new Colorado law appears to be to treat marijuana as much like alcohol as possible. Legalize it, but regulate its production, sale and use to mitigate any dangers associated with it.
If we don’t penalize a parent for a glass of wine or two after dinner while the kids are in bed, why should we penalize a parent for smoking a small quantity of pot? Can a parent handle a crisis while high? Are there varying degrees of intoxication from marijuana, some of which are relatively harmless and leave judgment more or less intact (like a drink or two of alcohol), and some of which incapacitate the user to the point where a court should say: “No, you can’t parent when you’re stoned!”
Other issues exist for families. It is now a legal business to grow marijuana — so why should a parent be punished for participating in a business no different than running a liquor store or restaurant or construction company in terms of legality and licensure requirements? We cannot deny that marijuana was completely illegal prior to the amendment being passed. However, there remains a criminal component to its production and use, and even if those former criminals now are law-abiding, growing marijuana may be a more dangerous business activity than, say, selling life insurance.
Many grow operations are likely to be built in basements or closets of residences. Few will disagree that children should not be presented with the opportunity to wander through mommy or daddy’s new gardening project and eat a few pot buds. Can we fashion safeguards so that a parent can still have his or her children in his or her home where marijuana is being grown? Are locks on the basement doors good enough?
What is good enough?
Let’s go back to our hypothetical family and suppose that Emily goes to court and persuades the judge that Jake’s marijuana use is concerning despite being legal under Colorado law but the judge thinks that Jake is a good dad otherwise. He orders Jake to ensure that the children are never exposed to the plants, that he lock the basement door and never smokes pot while he is taking care of the children. At first, Emily is relieved. After all, she does agree that Jake is a good dad when he’s not stoned, but she worries that Jake is not following the court order. She fears that Jake continues to smoke marijuana in the backyard after the children are in bed.
Concerned that Jake is violating the order, Emily asks the judge to impose some sort of drug testing to ensure that Jake remains sober during his parenting time. How can the judge enforce his order that Jake consume marijuana only at certain times? Marijuana remains in the user’s system much longer than alcohol and there is no test available to highlight when the marijuana was used. If Jake is permitted to use marijuana when the children are with Emily, but not during his parenting time, how can the court ensure that he is being compliant?
The legalization of marijuana presents an entire range of legal issues and problems. Divorce attorneys anticipate complications when this issue is raised as well as of the necessity of substance abuse experts to evaluate whether a parent’s use of marijuana should impact their parenting time. If nothing else, the amendment promises legal quandary where the consumption of pot and parenting intersect.
Alexandra White and Carolyn Witkus are attorneys with Gutterman Griffiths PC in Lone Tree. Both attorneys specialize in high-conflict parenting litigation, including cases involving substance abuse.
I said when Amendment 64 was put on the ballot that everyone was putting the cart before the horse.. My comments were received with verbal negativity and outdated inuendo… but this is the meat and potatoes of my point then and now..
Supporters of amendment 64 quie childishly seemed to think that it should just simply be passed and then everyone should just go away and leave it alone. The reality is exactly like is stated in the article; legal issues, limits, parenting situations, penalites and punishments will need to be (and will) be determined. Alcohol has been through the ringer and every aspect of it’s use severely scrutinized. MADD and SADD were developed and new versions will be created in the future. I would imagine they will either call themselves MAWD and SAWD or MASD and SASD. Either will work just fine. content: http://www.denverpost.com/termsofuse
Like many factors which influence a family or lead to divorce, legalized marijuana might be one of them but it’s not something the public at large needs to consider. It’s a family issue, much like politics or religion or punishment or leniency or alcohol or cigarettes or extended absences or excessive overtime or education or debt or in-laws, and so on.
Tell that to your DUI lawyer as you shell out $12K for having 3 beers with dinner and get pulled over for a blinker being out with your kids in the car and are “honest”… Then the next day you can tell that joke to Child Welfare when they accuse you of endangering the welfare of your kids and scrutinize you even more before whisking them away to some foster home…
Another hypothetical, say moms late getting the kids to school, en route she speeds through school zones and changes lane erratically.
These are things that are illegal and endanger not only their lives but others around them.
Dad files for divorce and wants full custody, she brings up the stories hypothetical, but here’s the problem, was dad smoking when only he was watching the kids? We know without a doubt that mom was the only one driving.
Another point that this story doesn’t discuss is why did mom allow him to smoke in the first place if this is a valid reason for divorce?
In this hypothetical story wouldn’t both parents lose the children?
First, she didn’t divorce him because he smoked pot. She divorced him because he took money they had earmarked for other purposes and started a business with which she didn’t agree. Second, a parent would not lose custody of their children for one speeding violation.
Agreed again, however having known people who unfortaunately get on the radar and into the “system” through issues similar to the ones mentioned in the article – you will find it is nothing more than a meat grinder chalked full of nothing but labels and perceptions given by those with “authority” (the system) and are essentially un-counterable by those with no “authority” (you and me). It is a bizarre world where absolutely nothing is logical. It is out there Sans and unfortunately, as well, an instance or thousands of slight variations to the instance mentioned in the article – MJ will be on their radar and could cause another seemingly innocent victim be cast into that meat grinder especially when there are children involved… Just a warning – nothing more, nothing less… We should all educate ourselves on this matter so we are not caught off guard or have any mis conceptions about “should or would” or “what if’s”…
I am thankful there are minds thinking and analyzing how the passing of Amendment 64 will affect families, especially families of divorce as the divorce rate hovers at 50%.
Sure, there are many issues that divide spouses. This article addresses one issue that deals with the supervision and care of children. Because marijuana use is controversial (regardless of Amendment 64), there is no doubt that its’ entry into the judicial system will be interesting. Great read!
If politicians were smart, they would have been working on the ramifications of 64 passing long before it was voted in.
Tough luck for them, they could have been ahead of the game.
The people have spoken. It is not the voters’ fault the politicians were sitting on their thumbs.
There is an important difference between alcohol use and marijuana use: when you drink a glass of wine, you expose only yourself to alcohol; when you smoke a joint, you expose others to marijuana via second-hand smoke. We now know that second-hand cigarette smoke has a variety of negative effects on health, including increased risk of cancer and, among children, increased chance of developing asthma and dying of SIDS. There is very little research on the effects of marijuana on children’s health and development, although there is at least one study showing increased chance of miscarriage and still-birth among women whose partners (not themselves) use marijuana. We don’t know if that is due to effects of marijuana on sperm (causing genetic mutations that effect viability) or effects of second-hand smoke on the developing fetus. My neighbor regularly smokes pot in his yard now and, unfortunately, the smoke does not respect property boundaries. The air in my yard smells of pot most days such that I cannot allow my toddler outside to play and I worry about how much of it gets into my house. I don’t care what others chose to do to themselves, but I choose not to smoke pot and I certainly don’t want my child exposed to it. Those choices are taken away from me when I am involuntarily exposed to other people’s marijuana use. As a developmental scientist and a mother, I am very concerned about this new experiment into which we have all entered. Given the known health issues associated with smoking, and the absence of research on exposure to second-hand marijuana smoke, I believe it was irresponsible for Coloradans to legalize marijuana.
BTW, people who use marijuana are fond of pointing out that it is technically not physically addictive. The definition of an addiction, however, includes chronic impairment of social and family relationships as a result of substance use. Choosing to continue using a substance in the face of ongoing marital conflict and, ultimately, the dissolution of the marriage and family seems to me a catastrophic impairment of social and family relationships.
Congratulations Colorado. We have elevated our national tendency towards narcissist decision making to a whole new level.