October 19, 2014

Laurel Anne Markus: Medical Marijuana & Child Custody Case from Colorado Court of Appeals

Just before the Memorial Day Weekend, our Court of Appeals released its decision in the case In re Marriage of Parr, 09 CA 0854 (May 27, 2010) the first Colorado appellate case involving an allocation of parental responsibilities in which one parent is a medical marijuana patient. As expected, the Court answered only the specific questions presented by the case on appeal, leaving many gaps in our understanding. Still, it is encouraging to finally have some judicial guidance in this hotly contested area of law.

The underlying case had a distinctive fact pattern. Father hid his application for inclusion on the medical marijuana registry from the opposing party and the Court. Father voluntarily entered into a parenting agreement that compelled him to submit to periodic urine analyses (UAs) to demonstrate he was refraining from the use of marijuana. Once he was accepted into the registry, he then sought to have the urine testing provisions of the parenting agreement stricken. A few months later, Mother petitioned the Court to restrict Father’s parenting time because he had not submitted clean UAs per the parenting agreement and was asking the child to “keep secrets about his drug use”. Without holding a hearing, the district court ordered that Father’s parenting time would be supervised until he either demonstrated by clear and convincing evidence that his use of medical marijuana was not detrimental to the child or submitted a clean hair follicle test. Moreover, Father was ordered not to consume marijuana while with the child. Consequently, while his usage of marijuana was a factor in the original allocation of parental responsibilities, the case was brought up on appeal from a modification of parenting time.

This posture of the case is important because in a modification case, instead of applying the “best interests of the child” standard, the Court must apply the “endangerment” standard of §14-10-129(1) C.R.S. Under the endangerment standard, a Court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In general, the application of the endangerment standard makes it more difficult for the parent seeking a modification of parenting time to succeed. For example, it would be harder to show that a parent’s marijuana use constitutes a danger to the child, than it would be to show that his or her use of marijuana while parenting was not in the child’s “best interests”.

While the Court implies that a requirement to refrain from medical marijuana while parenting would constitute a restriction on parenting time, for its holding the Court instead relies upon the “condition precedent” of the parties’ parenting agreement. Since Father had already agreed to a parenting plan that required him not to use marijuana at all, there was no qualitative change in his parenting time when the Court ordered him to refrain from marijuana use when the child was with him.

The remainder of the Court’s ruling focuses on the fact that the district court did not conduct an evidentiary hearing to determine whether Father’s use of marijuana constituted endangerment to the children’s physical health or an impairment to their emotional development. Both the majority and concurring opinions noted that Mother filed a petition for a hearing on the issue of endangerment that was neither granted nor denied. Instead, the lower court appears to have entered orders without taking evidence or making appropriate findings of fact.

For this reason the appellate court reversed the imposition of supervised parenting time. Without an evidentiary hearing, the record could not support the requirement of supervised parenting time. The Court contrasts the record before it, with a Washington case In re Marriage of Wieldraayer 147 Wash. App. 1048 (Wash.App.1988)(unpublished) holding that trial court had discretion to require supervised visitation where evidence amply illustrated the effects on children of father’s use of medical marijuana while around them. The Court also made note of a California case In re Alexis E. 90 Cal. Rptr.3d 44, 56 (Cal.Ct.App. 2009) that to bring a case within jurisdiction of a dependency court, the record must reflect more than the mere usage of medical marijuana, for example showing secondhand smoke effects or evidence of a negative impact on using parent’s “demeanor toward the children”.

Finally, the appellate court held that the district court erred in requiring hair follicle testing rather than another type of testing “without an evidentiary basis”. Mother’s petition alleged that Father had not been submitting urine analyses (“UA”s) in accordance with the parenting plan. It seems that ordering a hair follicle test would be an appropriate judicial response to a parent’s repeated failure to comply with court-ordered UAs. It’s unclear from the ruling what is necessary to support hair follicle testing under these circumstances: merely some evidence of noncompliance with the UAs or some additional evidence regarding hair follicle testing.

In summary, this case would have been much more instructive if an appropriate evidentiary record had been established in the underlying case. Perhaps there will be another appeal after findings of fact are made at the trial court level. In the meantime, In Re Marriage of Parr reminds us of the importance of affording family law cases a proper hearing on the merits, despite budget constraints and crowded dockets.

Laurel Anne Markus blogs at the Colorado Business and Family Lawyer Blog and this post originally appeared hereClick here to read all posts by this author.

More news on Medical Marijuana.

More news on Family Law.

Tenth Circuit: Opinions, 6/1/10

The Tenth Circuit on Tuesday issued no published opinions and four unpublished opinions.

Unpublished

Dampf v. Parker

Comrie v. Wilner

United States v. Pugh, Jr.

Arias v. Pacheco

Resource: Adobe Releases eSignature Tool

Adobe has just released eSignature, a software tool to make affixing digital signatures even easier for legal practitioners.

TechCruch reviewed eSignature earlier this month:

Upload your document, insert the recipient’s e-mail, select a date, insert a message and then sign. The finished document is certified to ensure that it hasn’t been altered since the signature— if it is modified in any way the certification tag disappears. The process is dead simple (it took me less than two minutes from start to finish) and best of all, it’s free.

And Lawyerist reviews it, noting possible concerns:

One, whatever document you are signing at least temporarily sits on Adobe’s servers. If you are concerned about data security and/or confidentiality, this could be an issue. Two, just because you are willing to digitally sign does not mean the other side wishes to do so. That would be my bigger concern, especially given the increasing concerns about cloud computing and security issues.

The application is available as a free download and, according to Adobe, complies with both the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN Act) (.pdf) and the Uniform Electronic Transactions Act (UETA) (.pdf).

(image source: Wikimedia Commons)

June 10, 2010: What CCIOA Practitioners Need to Know – The HOA Information and Resource Center

High noon on June 10 is the time and CBA-CLE’s large classroom is the place for a one-hour lunchtime program, “What CCIOA Practitioners Need to Know:  The HOA Information and Resource Center.”

Join Otten Johnnson real estate practitioners Amy Hansen and Jennifer Warnken as they speak about HB 10-1278, the so-called HOA Ombudsman Bill, which creates the HOA Information and Resource Center (HOA IRC) within the Colorado Division of Real Estate. Learn more about the role of this new group, as well as the requirement that common interest communities register with the HOA IRC–and the serious implications if they don’t.

Lunch will be served at the live program, which will also be available as a live webcast, an mp3 download, and a video on demand for those unable to attend. The program is eligible for one general CLE credit. Register today!

(image source: Wikimedia Commons)

SCOTUS Limits Miranda in Berghuis v. Thompkins

Among the cases announced by the U.S. Supreme Court this morning was Berghuis v. Thompkins. In this case, a 5-4 majority of the Court ruled that an interrogated suspect must explicitly invoke his or her right to silence under Miranda, but that waiver of Miranda’s right to silence need not be explicit.

From SCOTUSblog:

By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence.  Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

Justice  Sotomayor penned the dissent, which was joined by Justices Stevens, Ginsburg, and Breyer.

Tenth Circuit: Opinions, 5/28/10

The Tenth Circuit on Friday issued no published opinions and four unpublished opinions.

Unpublished

Li v. Holder, Jr.

Anthony v. Alorica, Inc.

United States v. Swantz

Alvillar v. Garner

Update: Applications for 22nd Judicial District Vacancy Due June 2

Last weekend’s untimely passing of Montezuma/Dolores County District Attorney Jim Wilson has left a vacancy in the Twenty-Second Judicial District’s District Attorney’s Office, and individuals interested in applying for the position must do so by tomorrow afternoon, the Office of the Governor has announced.

To be considered for the district attorney’s position, applicants must submit this application plus supporting materials to Gov. Ritter’s office by the close of business on Wednesday, June 2. To be eligible, applicants must have been licensed to practice law in Colorado for the last five years, must be a qualified elector in the Twenty-Second Judicial District, and must reside within the district while serving as its district attorney. The appointee will occupy the seat until January 11, 2011. If appointee wishes to remain in the position beyond that term, he or she must run for election in the 2010 general election.

Gov. Ritter is expected to appoint the new district attorney by the end of June. In the interim, a representative appointed by Colorado District Attorney John Suthers is prosecuting cases for Montezuma and Dolores counties.