Divorce at Altitude: A Podcast on Colorado Family Law

How THC Use Affects Child Custody in Colorado | Episode 148

April 06, 2023 Ryan Kalamaya & Amy Goscha
Divorce at Altitude: A Podcast on Colorado Family Law
How THC Use Affects Child Custody in Colorado | Episode 148
Show Notes Transcript

Now that THC is legal in Colorado, many questions are being raised about how the consumption of the substance affects custody. In this episode, we are going to tackle some of these important questions. Today on Divorce at Altitude, you will hear all about the framework we want you to set when it comes to the use of legal (and illegal) substances, why the use of THC isn’t necessarily a danger to the child, when it could be a danger, and the importance of understanding why it’s being used. 

The main thing to consider is how THC use affects parenting time and whether a child’s needs are being met. In this episode, we discuss the best way to prove whether or not a parent's THC use is affecting their ability to parent during their parenting time. We delve into marijuana testing, the associated difficulties, and why you need to stay educated and updated with evolving methods. This is an issue that is on the rise so be sure to tune in!

Key Points From This Episode:

  • Today’s topic of discussion: How marijuana affects child custody.
  • The importance of setting the framework for parents using legal substances.
  • Why you need to focus on what’s affecting parenting time. 
  • The health issues associated with smoking THC.
  • The issues involved with THC testing in custody battles and the best way to test it. 
  • Why a parent has to prove that their ex-spouse's THC use is affecting their child. 
  • Why ingesting THC doesn’t necessarily mean a parent is endangering their child. 
  • The importance of considering reasons for ingesting THC and if the child’s needs come first. 
  • The dangers of leaving edibles lying around in reach of children. 
  • The importance of being educated on THC testing and how it’s evolving. 

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.



Ryan Kalamaya (3s):
Hey Everyone. I'm Ryan Kalamaya

Amy Goscha (6s):
And. I'm Amy Goscha

Ryan Kalamaya (8s):
Welcome to the Divorce at Altitude. A Podcast on Colorado. Family Law.

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me I. know Besides. being an experienced divorce attorney, I'm also a Divorce client.

Ryan Kalamaya (20s):
Whether You are someone considering divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to Divorce co-parenting and Separation in Colorado Welcome. Back to another episode of Divorce Altitude. This is Ryan Kalamaya and this week. I am joined by Amy. Amy, what's going on?

Amy Goscha (45s):
Hi Ryan, great to see you. We have an interesting topic to talk about today.

Ryan Kalamaya (50s):
Yeah. We're gonna be discussing how marijuana can affect child Custody in Colorado. As most of our Listeners know, marijuana is now legal for recreational and medicinal use, but that doesn't mean it still can't have an impact on parenting and child Custody cases. So Amy, we're gonna talk about what people should take into consideration if they're using marijuana or the other parent is using marijuana, and what considerations are involved with child Custody. So let's get into it. So Amy, first off, Colorado is one of the first states to recognize marijuana as legal.

Ryan Kalamaya (1m 30s):
So can you tell Listeners a little bit about what they should keep in mind when it comes to parenting issues and Custody?

Amy Goscha (1m 37s):
Yeah, so I think what's helpful is to kind of set the framework. So when clients come to us, you know, like if they say that their soon to be ex-spouse or ex-spouse has a marijuana problem, a lot of times people come to us and say, the other parent is a bad parent and this is affecting parenting time. And I should have the kids more, right? And so the biggest thing that I always advise people is just because someone has a glass of wine, just because someone smokes marijuana doesn't always translate into them being a bad parent or being a diminished parent. So you have to kind of parse out those two issues. So when it comes to Family Law case, what you're looking about is what's affecting the children during parenting time.

Amy Goscha (2m 23s):
We're talking about marijuana and THC today. Is a parent smoking or ingesting marijuana during their parenting time? And is it inhibiting their ability to parent their children? So that's kind of, you know, the framework that we start from. I'm guessing when you talk to clients as well, like you come across that question a lot about, you know, substances.

Ryan Kalamaya (2m 45s):
I think it used to be a lot more of an issue when it was first legalized because there was this stigma, And, I think that it comes up. Certainly as you mentioned And, we have a separate other episode specifically on alcohol with John Gilburt. So if people came into this episode thinking about alcohol, and we're gonna talk about some of the testing issues with THC versus alcohol, but certainly cocaine or other illegal substances, I mean we have an opioid epidemic right now. When it impacts children and a person's ability to be present, then you can start talking about what relationship it has to parenting.

Ryan Kalamaya (3m 29s):
And THC I think has certainly had an evolution throughout Colorado. Amy, you kind of mentioned a few things that I think are relevant. you know, if you have children and you're smoking marijuana, then the kind of secondhand smoke and the, those sorts of health issues that we heard about when we outlawed smoking in general in bars and restaurants, I think that that is, is relevant versus if someone is ingesting it through gummies or something like that, that I think is gonna be relevant. But as you mentioned, it's not illegal anymore to have THC and to drive or to just in general to have it.

Ryan Kalamaya (4m 12s):
It's a matter of level. And when we get into levels, we're kind of talking about testing. So what are the issues involved Amy with testing? Let's say that client Eric or Melanie Wolf comes to you and says, Melanie says Eric Scott, a problem with THC. We need to monitor his consumption of THC with the kids. What are the issues that Melanie's gonna have to really navigate? Yeah,

Amy Goscha (4m 39s):
So as the attorney, I really need to understand how do you test for levels of THC? What kind of providers are able to do that? So when you talk to a provider that does drug testing, one of 'em that we refer to a lot of times, you know, that is around, at least the metro area, is 52 80 testing. And when you look at testing with this type of facility that's broken down into urine testing, saliva testing, hair follicle, nail testing, the path test. So there's these various ways to test for substances. And when it comes to THC, the best way to test for that frankly, is gonna be looking at the levels on a weekly basis.

Amy Goscha (5m 22s):
Essentially doing more of the, the urine test on a weekly basis. So you can look at those levels to see if they're heightened from one week to a next. You know, if you're a parent where you're saying, well if I suspect THC, then I want the other parent to test. There's just frankly not a lot of good testing mechanisms out there. And their reason is why it's easier to test for alcohol is that alcohol stays in your system for a shorter period of time. I think it's up to 48 hours or even 72 hours. Whereas marijuana can stay in your system. I mean I think up to 14 days. So it's hard to pinpoint if you have a provision in or court order that says if a father or mother uses THC, they have to do testing and you lose parenting time, it's really hard to pinpoint that timeframe.

Amy Goscha (6m 18s):
So when you're looking at testing levels, you have to look at, well, if someone is ingesting marijuana, like say for a medical basis, what is that baseline and is it elevated in certain weeks? So, that can be a little bit more difficult. And frankly, you know, as an attorney and even someone who is dealing with a co-parent who you're concerned about that issue with children, you need to understand how the testing works. And kind of the second piece that you need to look at is the availability of this testing. Like if you're living, for instance, like if Melanie Wolf lives in Aspen or in Vail, the testing facilities might not be open on the weekend.

Amy Goscha (7m 1s):
And the other thing is, is if you're doing this, you're an analysis test, sometimes that test might not come back for 72 hours or a week and that parent has had extended parenting time. you know, so those are some of the parameters, And I guess, you know, difficulties that you just need to be aware of when you're looking at that issue. But the good news is, as Family Law attorneys and courts like we know this And, we can put certain orders in place that can allow for testing. But with THC, the best way to make sure that parent isn't ingesting marijuana to a level that would inhibit their ability to parent during their parenting time would be frankly on a weekly basis.

Ryan Kalamaya (7m 45s):
This episode is brought to you by our law firm, Kalamaya Goscha. Amy, And I describe our law firm as an innovative and ambitious trial team that pushes the boundaries to discover new frontiers in Family, Law personal injuries in criminal defense in Colorado. We currently have offices in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. If you wanna find out more, visit our website, Kalamaya dot law now back to the show. Yeah. And the reason I think people need to understand is that that half-life or that the effects of of marijuana and, and really you can do blood testing and it will take a snapshot.

Ryan Kalamaya (8m 27s):
Our criminal defense team deals with this with driving because it is against the law to drive when you're under the influence in Colorado of of THC. And so they'll have active versus inactive and you can really tell whether or not they're just these byproducts, which is the urine versus what's actually going on in the human body at that given point in time. And it's unrealistic to have a parent continually doing blood testing, pin pricking their finger every hour, every two hours, every day. You can do it in alcohol. And the reason is that the breath testing the mechanism of alcohol and it just is a lot more viable for someone to test with Soberlink or some of the other testing that we have available.

Ryan Kalamaya (9m 19s):
And I know that there's been studies in, in Colorado's struggled in how can we find testing for driving? Because that is when it often comes up, but it also relates to the issues that you addressed Amy. And that is someone really has to Eric or Melanie is really gonna have to, I think, put together a logical argument instead of just this emotional, well, they're just stoned and they're a bad parent under 14, 10, 1 24, the physical and mental factors of a parent do come into play. And Melanie, if she's concerned about Eric's ability to parent, she's gonna have to say, well, this is what's happened to the children because of THC or because Eric is under the influence of THC.

Ryan Kalamaya (10m 5s):
I mean that's harder. As a former prosecutor Amy, you And I were talking about, I don't condone abusing THC or just being stoned all the time, but the facts on on the human body are such that don don't recall in in terms of domestic violence or other negative impacts of marijuana on domestic violence. I didn't even have the, I can recall. And that's just anecdotally someone that beat up their husband or wife because they were stoned, they just kind of sit on the couch and eat pizza or Cheetos. I think John Hickenlooper was kind of famous as saying, don't bust out the Pringles just yet. But alcohol is different. Where alcohol people can, they oftentimes will lose their anger and it's just that effect on the body.

Ryan Kalamaya (10m 51s):
That's not to make it any better for parenting. It's not helpful for a parent to just sit on the couch and watch movies if that's the effect of THC on that particular person. But a lot of people, they use it to sleep or for anxiety. But I think that if Melanie says, well, something might happen in the middle of the night and they Eric can't drive a child to the hospital, that might make some logical sense if the child has a medical issue like diabetes or something where they really need to act. But I think it really I think they, as time has gone on And, I, think Amy, you would agree. It really depends on the judge. If we're not allowed because of federal law, like judges and attorneys aren't supposed to be ingesting THC because it's, it's against, technically against federal law.

Ryan Kalamaya (11m 39s):
But I think judges have different degrees of how aware or how concerned are they about THC. But it can be a factor, I think for people, even though it's legal. I think certainly Amy, we hear these arguments, well I can do it because it's legal and it shouldn't matter. Can you talk about some of the case law that has come out in Colorado? There are judges who have required testing and so can you speak to that in terms of marijuana and Custody?

Amy Goscha (12m 11s):
Yeah, and you're absolutely right. The baseline from the court's perspective is just because a parent uses marijuana does not mean as a baseline that they're endangering their child. There was a specific case where a parent filed a motion to restrict parenting time based on the other parent smoking marijuana. And the magistrate came back and said, no, this parent, just because they're ingesting THC doesn't mean that they're necessarily endangering their their child. So we have kind of that general framework. We have more recent case where in this case had her visions within the parenting plan about testing for THC.

Amy Goscha (12m 52s):
And essentially the parent who was being tested for a THC kept violating the provision. And so they came back to court and the judge said, I can impose stricter testing to ensure that the children are safe and it's not a prohibition against father's qualitative time. And so the court was able and found that more strict testing could be put in place for THC. But again, it goes to how it's affecting the parent's parenting time with the child. And I, think you're right, every judge kind of has a different view on that. But from the parent perspective, I think depending on the age of your children and why you're using THC really matters.

Amy Goscha (13m 38s):
If you have a teenager and you're ingesting THC, what kind of example are you setting for your child? you know, like you have to think about those things and whether or not the court will believe that you are placing the needs of your child in front of your own.

Ryan Kalamaya (13m 53s):
The studies are pretty compelling in terms of THC, the effects on teenage brains when they're in a development phase, that is a different game compared to 40 year old Eric Wolf who just might want to have a gummy to kind of chill out. That is different. And I've seen other circumstances where parents leave either gummies, like edibles or loose leaf marijuana out in the open and when the children can get access to it. When everyone's kind of heard the story in Colorado of someone inadvertently taking an edible or something of that And, you know, the person didn't realize what they were having. Especially I mean a lot of it just looks like candy.

Ryan Kalamaya (14m 33s):
And like kids, they love candy. At least my kids do. So when they, if, if those sorts of things and they, those can often happen if you, people aren't vigilant about locking it up or storage. I think another thing worth mentioning is that if Eric is a habitual user of THC, he needs to be mindful of that. There could be the effects of THC in terms of short-term memory loss or being lethargic in terms of motivation and those sorts of things. If Eric misses a soccer game for his kids or he takes his kids late to school, some of those general stereotypes that can matter and if it becomes a real problem.

Ryan Kalamaya (15m 16s):
But having a gummy on a Friday night after the kids have gone to bed is a different story than every day where someone's waking and baking and all these different terminologies that we have. So I think that for people, the takeaway is that it can matter. You're gonna have to show some demonstrable, not harm, but effect with the children in order for it to be really relevant. Know your judge and the testing is, is a real challenge. Anything else, Sammy, before we wrap up?

Amy Goscha (15m 47s):
I think just make sure that, you know, cause the testing is evolving, just like technology. They're looking at whether or not nail testing is better than hair follicle testing because of shampoo can strip certain things off of hair. So there's, I think just making sure that you're educated as to where the testing is And, we hope that it gets better as time goes on.

Ryan Kalamaya (16m 8s):
Well, hopefully people have learned a little bit about marijuana and Custody. Until next time, thanks for joining us on Divorce at Altitude. Hey Everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altitude dot com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at Kalamaya dot law or 9 7 0 3 1 5 2 3 6 5.

Ryan Kalamaya (16m 51s):
That's K A L A M a.