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Colorado's marijuana law puts children and parents in legal limbo

Colorado’s legalisation of marijuana leaves legal issues in uncharted territory, including custody disputes among parents who consume the plant. Photograph: Brandon Marshall/Rex Photograph: Brandon Marshall/REX

Colorado’s legalisation of marijuana leaves legal issues in uncharted territory, including custody disputes among parents who consume the plant. Photograph: Brandon Marshall/Rex Photograph: Brandon Marshall/REX

Last modified on Sat 6 Oct 2018 23.15 BST

A Colorado man loses custody of his children after getting a medical marijuana card. The daughter of a Michigan couple growing legal medicinal pot is taken by child-protection authorities after an ex-husband says their plants endangered kids.

And police officers in New Jersey visit a home after a nine-year-old mentions his mother’s hemp advocacy at school.

While the cases were eventually decided in favor of the parents, the incidents underscore a growing dilemma: while a pot plant in the basement may not bring criminal charges in many states, the same plant can become a piece of evidence in child custody or abuse cases.

“The legal standard is always the best interest of the children, and you can imagine how subjective that can get,” said Jess Cochrane, who helped found Boston-based Family Law & Cannabis Alliance after finding child-abuse laws have been slow to catch up with pot policy.

No data exist to show how often pot use comes up in custody disputes, or how often child-welfare workers intervene in homes where marijuana is used.

But in dozens of interviews with lawyers and officials who work in this area, along with activists who counsel parents on marijuana and child endangerment, the consensus is clear: pot’s growing acceptance is complicating the task of determining when kids are in danger.

A failed proposal in the Colorado legislature this year showed the dilemma.

Colorado considers adult marijuana use legal, but pot is still treated like heroin and other Schedule I substances as they are under federal law. As a result, when it comes to defining a drug-endangered child, pot can’t legally be in a home where children reside.

Two Democratic lawmakers tried to update the law by saying that marijuana must also be shown to be a harm or risk to children to constitute abuse.

Colorado marijuana sellers took $5m in just one week since the supply for recreational use was made lawful. Guardian

But the effort led to angry opposition from both sides – pot-using parents who feared the law could still be used to take their children, and marijuana-legalization opponents who argued that pot remains illegal under federal law, and that its very presence in a home threatens kids.

After hours of emotional testimony, lawmakers abandoned the effort as too complicated. Among the teary-eyed moms at the hearing was Moriah Barnhart, who moved to the Denver area from Tampa, Florida, in search of a cannabis-based treatment for a daughter with brain cancer.

“We moved here across the country so we wouldn’t be criminals. But all it takes is one neighbor not approving of what we’re doing, one police officer who doesn’t understand, and the law says I’m a child abuser,” Barnhart said.

Supporters vow to try again to give law enforcement some definitions about when the presence of drugs could harm children, even if the kids don’t use it.

“There are people who are very reckless with what they’re doing, leaving marijuana brownies on the coffee table or doing hash oil extraction that might blow the place up. Too often, with law enforcement, they’re just looking at the legality of the behavior and not how it is affecting the children,” said Jim Gerhardt of the Colorado Drug Investigators Association, which supported the bill.

Colorado courts are wading into the question of when adult pot use endangers kids. The state court of appeals in 2010 sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter.

The court reversed a county court’s decision that the father couldn’t have unsupervised visitation until passing a drug test, saying that a parent’s marijuana use when away from his or her children doesn’t suggest any risk of child harm.

But child-endangerment standards remain murky in Colorado, with wide disparities in how local child-protection officers and law enforcement approach pot, said Rob Corry, a Denver lawyer who successfully argued the father’s custody appeal.

Moriah Barnhart, facing the possibility of intervention by child protective authorities, moved to Colorado to treat her daughter, who has cancer, with what some describe as cutting edge cannabis medication. Photograph: Brennan Linsley/AP Photograph: Brennan Linsley/AP

Corry, who helped Colorado’s 2012 campaign to legalize recreational marijuana, said the main thrust of the effort was to treat pot like alcohol.

“Think of brewing beer. You’ve got a constitutional right to do it. There’s nothing wrong with it. Marijuana should be just as – you just keep it on a high shelf, right next to your vodka. But in practice, this is not how law enforcement treats marijuana,” he said.

In the absence of legal guidelines, a growing network of blogs counsel parents in how to deal with police or child-protection agencies concerned about parental marijuana use, including one, Ladybud, run by legal-pot activist Diane Fornbacher.

She said she moved to Colorado this year after child-protection workers visited her family in New Jersey after a teacher alerted officials when her son mentioned hemp – pot’s non-hallucinogenic cousin – at school.

“They said, ‘We’re just here to help.’ Emotionally, my brain was like, ‘My kids! My kids!’ My mama bear instinct kicked in,” she said.

The need for better standards about when marijuana endangers kids is growing by the day, said Maria Green, a Lansing, Michigan, mother who lost custody of her infant daughter for three months last year.

Green grows pot to treat her husband’s epilepsy, and though Michigan’s medical marijuana law states parents shall not be denied custody or visitation with a child for following the statute, a legal dispute with her ex-husband led to her daughter being placed with a grandparent until it was resolved.

The ex-husband who brought the complaint declined an interview until talking with his lawyer.

“I never in a million years thought that they were going to take my daughter,” Green said. “I know that there’s a place for child protection, but I would love to see it used to protect kids from being actually hurt.”

Children, Cannabis, and Colorado’s Laws

Colorado is a recreational use state, allowing adults over the age of 21 to make their own choices regarding consumption of cannabis for recreational use. Of course, as with any overarching headline, it comes with subtext. In many of our recent previous posts, we have covered, in great detail, Colorado’s recreational use laws, how they apply to you, and how you may find yourself facing drug charges. We continue to get a flood of questions from various populations on the subject, and are quickly realizing the waters are still pretty murky on the subject. In today’s post, we are going to discuss some of the ways Colorado natives have found themselves facing criminal charges and family court cases when Colorado Child Protective Services gets involved.

At the Law Offices of Murphy & Price, it is our intent to use or blog as a platform to inform the people of the laws and their rights. If you are facing criminal drug charges or child abuse or endangerment charges related to marijuana use or possession, contact us today. We will begin building your defense at the time of your complimentary consultation and aggressively defend your right to parent and keeping your record clean.

Contributing to the Delinquency of Minors

Colorado law is clear that to purchase, possess, and consume cannabis in any form, the person must be over the age of 21 and purchase from a legal source. Selling or sharing your marijuana with any person under the age of 21 may result in felony charges including sale of a controlled substance to a minor or contributing to the delinquency of a minor. The best thing to do is to let everyone you know to purchase and use their own and avoid any parties where there are underage people.

Drug Testing at Birth

According to the state of Colorado, there is no known safe amount of marijuana use during pregnancy or breastfeeding. While the state recognizes that recreational use is legal for people over the age of 21, and it is not expressly illegal to use marijuana during pregnancy, mothers or newborns who test positive for THC at the time of birth is considered child abuse by exposure to a controlled substance and is grounds for removal of the child from the home. In most cases, where newborns or their mothers test positive for THC and there are no other concerns, the child will likely not be removed from the home, but CPS will have an open record and reasonable suspicion to look into other conditions.

Exposure to Controlled Substances

Parental use of controlled substances around their children, in the presence of their children, or caring for their children while under the influence can result in criminal neglect or child abuse, based on other factors. While marijuana is legal for recreational use by Colorado adults, it is still considered a controlled substance, and being under the influence while caring for your child puts you at risk of criminal charges.

Aggravated DWAI

Driving impaired is grounds for a whole list of criminal charges, including DWAI. When children are involved, matters can take a turn for the worst. One of our previous posts discussed the potential outcome of a DUI with a child in the vehicle and the charges and sentences are quite similar regardless of what substance the driver is under the influence of. If a child is in the vehicle and the driver is cited for a DWAI, it can be escalated to an aggravated DWAI, carrying a harsher sentence, and CPS investigation.

Minor-in-Possession Charges

Minors who are accused of attempting to buy, carry, sell, or use marijuana in any form, face minor-in-possession charges. Minors who are arrested or charged with such offenses face penalties that can follow them throughout their lives. Students can be suspended or expelled while also facing criminal charges, and it may have an impact on future college attendance and financial aid. Charges and sentencing will vary based on the substance, how much they have, and how many other infractions they have been charged with.

According to Colorado recreational use laws, cannabis and children do not mix. People under the age of 21 are strictly prohibited from buying, selling, possessing, using, or being exposed to marijuana in any form. If you or your child are facing drug charges related to marijuana use, give the aggressive legal team at Murphy and Price, LLP a call to schedule your complimentary consultation today. We will begin building the legal defense that you deserve.

For more information, visit our Marijuana Charges page or our marijuana blog. You can also visit the state’s website for more information on recreational use and your rights.