When Colorado voters legalized the personal use of marijuana last November, they also unleashed a multitude of legal issues that have yet to be resolved. Among these issues are how state and local authorities should regulate the cultivation and sale of marijuana, how drivers can effectively be tested for driving under its influence, and how to deal with the fact that marijuana is still completely illegal on the federal level.
Legalized pot will undoubtedly also figure in family law cases - particularly when child custody is in dispute. At this time it is by no means clear what a family court judge might do when confronted with evidence that a parent is a recreational marijuana user.
Prior to legalization, the answer was clear: marijuana use would count against a parent seeking custody. But now that use of the drug is legal on a personal level, courts will undoubtedly hear arguments from lawyers that occasional marijuana use should be viewed in the same way as occasional alcohol use. The argument will be that marijuana should only be an issue if, as in the case of a parent who uses alcohol, it somehow endangers the child or exposes the child to unhealthy influences.
One serious concern is the possible exposure of the child to criminal elements. Until a regulatory scheme for the retail sale of marijuana is well-established, pot smokers will probably continue to buy from their old dealers - people who were, and possibly still are, criminals in the eyes of the law. Evidence that a custodial parent drove to a seedy neighborhood for a drug buy with the child in the car will not go over well at a custody hearing, regardless of legalization.
Ultimately a parent who wants to use marijuana and is involved in a custody dispute will have to make a choice. Is my use of this substance more important to me than having custody and visitation rights with my child? The court in a custody case looks at the best interests of the child, not of the parent. Until the use of legalized pot is well-regulated and accepted, parents who use pot and want to have legal custody of their children would be well advised to give up the habit.
Source: "Parenting and pot: Colorado divorce lawyers' perspective on marijuana legalization," Alexandra White and Carolyn Witkusdenverpost.com, Jan. 27, 2013