Last fall, voters for the first time approved the legalization of marijuana for recreational use at the state level – in Colorado and Washington. Since then, much attention has focused on the conflict between state and federal law, which still classifies the drug as illegal. But state legalization also raises important questions at the personal level. Many of them center around the family.
As attorneys practicing family law in Colorado, we feel it's important to consider these questions, especially since the push is on for recreational legalization in other states. Oregon, California, and Maine may be next. (Eighteen states plus the District of Columbia have legalized medical marijuana.)
Colorado's constitutional amendment states that individuals can purchase marijuana from authorized retailers and that licensed growers can produce commercial quantities for retailers. The intent is to treat marijuana like alcohol. That's not so easy in practice.
Based on our legal experience, we'd like to offer a scenario – fictional, but realistic – to illustrate how consequential Colorado's change will be for families, and how far the state still needs to go to address unresolved issues.
Consider Michael and Elizabeth Jones who have two children, Ashley, age 16, and Monica, age 13. The parents are no longer such a happy couple, although they all still live in a lovely home in Highlands Ranch, a well-off suburb of Denver. Ashley is a rebel – hanging out with the wrong boys, sneaking out of the house late at night, and thumbing her nose at her parents' authority now that she has a driver's license and a car. Monica is just the opposite of her big sister, struggling at school socially.
'But honey, it's legal now.'
Three to four nights a week, Michael quietly steps into the backyard or goes to the basement to smoke a joint. Elizabeth has never approved of his marijuana use, and as the children get older she has increasing concerns about their exposure to it. Michael says: "What's the big deal? It's legal here now. You don't hear me complain when you have wine after dinner."
The final straw comes when Michael decides to make some extra money to pay down credit-card bills (the perfect family vacation to Hawaii is expensive). He starts a small grow operation in the basement to sell marijuana. Elizabeth files for divorce – and she doesn't want Michael to have the children at all because she believes that the grow operation and his recreational marijuana use are dangerous to the children.
What happens to families when pot is involved? Drug use is often an issue in divorce and parenting cases. Usually, one parent does not approve of the other's drinking or use of illegal drugs – or addiction. 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 with marijuana legalization. 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 one hand, judges tend to represent a more conservative demographic and may continue to be shocked by a parent's recreational marijuana use (not to mention the state law's conflict with federal law). Yet the intention of the new Colorado law appears to be to treat marijuana as much like alcohol as possible: Legalize it, but regulate production, sale, and use to mitigate any dangers associated with it.
If we don't penalize a parent for having 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? For example, what if one of the Jones children has a medical emergency in the middle of the night after Michael has smoked pot; could he handle the crisis? Are there varying degrees of intoxication from marijuana, ranging from mild (like a drink or two of alcohol) to incapacitating the user, to the point at which a court should say: "No, you can't parent when you're stoned!"
These are precisely the arguments raised by Michael and Elizabeth in their now-contentious custody case. Meanwhile, Ashley is invited on a camping trip with friends (including teens her mother doesn't approve of). When Elizabeth refuses to allow it, Ashley runs away to her father's and refuses to speak to her mother.
But Michael comes home from work one evening and finds Ashley and her car gone, along with half of his crop of marijuana. He soon receives a call from the Nebraska police. Ashley has been arrested for possession of an illegal substance. Even if she were of age, marijuana isn't a legal substance in Nebraska.
Monica has also helped herself to her father's stash, and is expelled from school. She didn't use it, she says. She just wanted to show it around so kids would stop bullying her.
All those tricky questions
Can safeguards be fashioned so that a parent can still have his or her children at home where marijuana is being grown? So that marijuana does not make its way across state lines? So that it does not end up in schools or other inappropriate arenas? Are locks on basement doors good enough? Parental guidance and supervision? What is good enough?
And what about drug testing? Marijuana remains in the user's system much longer than alcohol, and there is no test available to definitively establish when or how much of the drug was used. Blood testing may be one option, but it is costly and requires a laboratory setting and trained professionals to draw blood.
And how does one determine if someone who tests positive for marijuana used it legally in Colorado – while not operating a vehicle and inside state lines – given the difficulties of testing?
One place to start answering the vast range of questions we raise is with research that aims to produce a method of testing that easily determines level of impairment. Until then, Colorado will have to work through these issues on an ad hoc basis. Other states considering legalization should realize that treating marijuana like alcohol is not as easy as it sounds.
Alexandra White and Carolyn Witkus are shareholders at Gutterman Griffiths PC in Littleton, Colo. Both attorneys specialize in high-conflict parenting litigation, including cases involving substance abuse.