It might be legal to smoke marijuana in Colorado, but how does that affect custody issues and other family disputes?
It might be legal to smoke marijuana in Colorado, but how does that affect custody issues and other family disputes? (Getty Images file)

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.