By Matt Masich, LAW WEEK COLORADO
DENVER — A parent’s use of medical marijuana does not necessarily constitute child endangerment, the Colorado Court of Appeals ruled Thursday. The determination of whether medical marijuana use presents a threat to a child’s safety should be made on a case-by-case basis, the court held.
Medical marijuana has been legal in Colorado for a decade, but urinalysis testing for marijuana is still used in some child custody matters. The parenting plan agreed to by divorced couple David Lyman and Catherine Parr called for the father to undergo “[o]ngoing UA’s [urinalysis tests] and drug screenings to demonstrate that he does not return to marijuana use.”
But a week after signing the parenting plan, Lyman learned he had been granted a license to use medical marijuana to treat back and knee pain resulting from a motorcycle accident.
Lyman filed a motion to asking a magistrate judge to waive the urinalysis requirement, but the magistrate said Lyman had voluntarily signed the parenting plan ordering urinalysis and was “stuck with it.”
A year later, El Paso County District Judge Rebecca Bromley upheld that order, but modified it to say Lyman could only have supervised parenting time until he could demonstrate to the court that his use of medical marijuana is not detrimental to his child. Bromley also held that Lyman could not petition for unsupervised visitation until he submitted a clean hair follicle test.
A three-judge Court of Appeals panel released 2-1 decision reversing Bromley’s more stringent order but upholding the original order calling for urinalysis.
“[T]he record does not show that father’s use of medical marijuana represented a threat to the physical and emotional health and safety of the child, or otherwise suggested any risk of harm,” Judge Daniel Taubman wrote in the court’s opinion. “Thus, father’s use of medical marijuana cannot support the trial court’s restriction on his parenting time.”
The court also vacated the order for hair follicle tests. However, the court was very clear on what it was not deciding.
“[W]e do not express an opinion as to whether medical marijuana use may constitute endangerment; rather, we conclude only that endangerment was not shown here,” Taubman wrote. “We also express no view on father’s constitutional right to use medical marijuana and whether the exercise of this right should bar UAs and drug screening.”
The court also said nothing in its decision would stop Lyman from arguing that his constitutional right to use medical marijuana should bar urinalysis testing. Neither does the opinion prevent Parr from asking for a hearing to restrict Lyman’s parenting time.
Judge David Furman wrote a special concurring opinion, saying that the best interests of the child should be the only thing considered in making a parenting plan, regardless of Lyman’s constitutional right to use marijuana.
Noted marijuana attorney Rob Corry represented Lyman on the appeal; Parr represented herself pro se.