In re Marriage of Parr & Lyman, 240 P.3d 509, 512 (Colo. App. 2010)

Rule: Medical marijuana use is not necessarily endangerment

Facts: Father agreed to a parenting plan with a UA requirement to ensure he didn’t use marijuana. A week after he signed the parenting plan, and the same day the judge entered the decree, the State approved his medical marijuana application. He filed a pro se motion to remove the UA provision from the parenting plan, but the magistrate denied his motion. He filed a timely motion for magistrate review. Five months later, Mother filed a motion to restrict parenting time. Nine months later, the trial court ruled. He had unsupervised overnights while the case worked through the courts. The trial court affirmed the Magistrate’s ruling and added that he could only have supervised parenting time until he could prove that his marijuana use was not detrimental to the child, and he had to submit to hair follicle testing. Father appealed the trial court ruling, and he argued that the parenting time restriction and the hair follicle testing modified the parenting plan and modifications were improper absent a finding that his medical marijuana use would endanger the child or lead to significant emotional impairment. The appellate court agreed with him, and stated that medical marijuana use alone does not represented a threat to the physical and emotional health and safety of the child, or otherwise suggested any risk of harm.

More on this issue:

See In re the Marriage of Parr, 240 P.3d 509 (Colo. App. 2010).

The COA upheld the original stipulation between the parties that required Father to drop UA’s to demonstrate that he was not using marijuana (Father did not have a medical marijuana card at this time). At the time the stipulation was approved, Father had limited parenting time, therefore, the trial court did not view the imposition of UA drug testing as a restriction on his parenting time. Id. at 511-512. This is important for our cases where the party does not have a medical marijuana card. I would argue, no card, no reliance onPar/Lyman. This case cannot be read to suggest that any illegal drug use without more is not endangerment - that is far too broad a reading.

Shortly after signing the stipulation, Father obtained his medical marijuana card and petitioned the magistrate asking that the UA testing be waived. The magistrate concluded that Father had agreed to the stipulation knowing he had applied for a medical marijuana card so he was “stuck” with the stipulation. Father appealed, but no immediate action was taken. In the interim Father’s parenting time increased to unsupervised and overnight visitation. Subsequently, Mother filed a motion to restrict parenting time because the Father had not provided clean UA’s and had asked the child to keep Father’s drug use a secret. No hearing was held on this motion. (This is critical to the outcome). More than a year after Father filed his petition for review, and 9 months after Mother’s motion to restrict, the trial court issued an order returning Father’s visitation to supervised and instructing that he may petition for unsupervised visitation only upon the submission of a clean hair follicle test and weekly clean UA’s. No evidentiary hearing was held, the Court simply went off Father’s admission to medical marijuana use.

The narrowly tailored issue on appeal analyzed whether the trial court erred by: 1) adding the additional requirement for hair follicle testing to the motion to restrict; and 2) basing the restriction off the sole evidentiary fact that Father had admitted to medical marijuana use. The COA was clear to distinguish this case from a Washington case where an evidentiary hearing was held and the restriction of parenting time was based on medical marijuana use AND the danger of second hand smoke and the parent’s negative demeanor towards the children and others when the medical marijuana was used. Id. at 512; In re Marriage of Wieldraayer, 147 Wash. App. 1048 (Wash. Ct. App. 2008). By doing so, the COA left the evidentiary door WIDE OPEN with regards to showing medical marijuana use plus (insert your facts here) at an evidentiary hearing constitutes endangerment.

The crux of the COA’s narrowly tailored opinion hinges on the fact that there was no evidentiary hearing regarding endangerment. The COA specifically stated “In reaching this conclusion, we do not express an opinion as to whether medical marijuana use may constitute endangerment; rather, we conclude only that endangerment was not shown here.” Id. at 513.

In summary, if medical marijuana use is an issue in your case, you MUST seek an evidentiary haring regarding endangerment (make sure you offer evidence at the hearing on the motion, even if by offer of proof). The COA left the bar pretty low in terms of showing endangerment with medical marijuana use plus ______. I think any credible argument would survive on appeal, as the standard for review would be “an abuse of discretion,” and the appellate courts are loathe to overturn endangerment findings for fear of ending up in the papers. (I.e. – I think having a parent using medical marijuana and transporting the child in the car would constitute endangerment. Courts don’t allow people to drive children around intoxicated even though drinking is legal).