How legal marijuana will affect troubled families

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.

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