And police officers in New Jersey visit a home after a 9-year-old mentions his mother's hemp advocacy at school.
While
the cases were eventually decided in favor of the parents, the
incidents underscore a growing dilemma: While a pot plant in the
basement may not bring criminal charges in many states, the same plant
can become a piece of evidence in child custody or abuse cases."The legal standard is always the best interest of the children, and you can imagine how subjective that can get," said Jess Cochrane, who helped found Boston-based Family Law & Cannabis Alliance after finding child-abuse laws have been slow to catch up with pot policy.
No
data exist to show how often pot use comes up in custody disputes, or
how often child-welfare workers intervene in homes where marijuana is
used.
But in dozens of interviews with lawyers and officials who
work in this area, along with activists who counsel parents on marijuana
and child endangerment, the consensus is clear: Pot's growing
acceptance is complicating the task of determining when kids are in
danger.
Colorado
considers adult marijuana use legal, but pot is still treated like
heroin and other Schedule I substances as they are under federal law. As
a result, when it comes to defining a drug-endangered child, pot can't
legally be in a home where children reside.
Two
Democratic lawmakers tried to update the law by saying that marijuana
must also be shown to be a harm or risk to children to constitute abuse.
But
the effort led to angry opposition from both sides — pot-using parents
who feared the law could still be used to take their children, and
marijuana-legalization opponents who argued that pot remains illegal
under federal law and that its very presence in a home threatens kids.
After
hours of emotional testimony, lawmakers abandoned the effort as too
complicated. Among the teary-eyed moms at the hearing was Moriah
Barnhart, who moved to the Denver area from Tampa, Florida, in search of
a cannabis-based treatment for a daughter with brain cancer.
Supporters
vow to try again to give law enforcement some definitions about when
the presence of drugs could harm children, even if the kids don't use
it.
"There are people who are
very reckless with what they're doing, leaving marijuana brownies on
the coffee table or doing hash oil extraction that might blow the place
up. Too often with law enforcement, they're just looking at the legality
of the behavior and not how it is affecting the children," said Jim
Gerhardt of the Colorado Drug Investigators Association, which supported
the bill.
Colorado courts
are wading into the question of when adult pot use endangers kids. The
state Court of Appeals in 2010 sided with a marijuana-using dad who lost
visitation rights though he never used the drug around his daughter.
The
court reversed a county court's decision that the father couldn't have
unsupervised visitation until passing a drug test, saying that a
parent's marijuana use when away from his or her children doesn't
suggest any risk of child harm.
But child-endangerment
standards remain murky in Colorado, with wide disparities in how local
child-protection officers and law enforcement approach pot, said Rob
Corry, a Denver lawyer who successfully argued the father's custody
appeal.
Corry, who helped
Colorado's 2012 campaign to legalize recreational marijuana, said the
main thrust of the effort was to treat pot like alcohol.
"Think
of brewing beer. You've got a constitutional right to do it. There's
nothing wrong with it. Marijuana should be just as simple — you just
keep it on a high shelf, right next to your vodka. But in practice, this
is not how law enforcement treats marijuana," he said.
In
the absence of legal guidelines, a growing network of blogs counsel
parents in how to deal with police or child-protection agencies
concerned about parental marijuana use, including one, Ladybud, run by
legal-pot activist Diane Fornbacher.
She
said she moved to Colorado this year after child-protection workers
visited her family in New Jersey after a teacher alerted officials when
her son mentioned hemp — pot's non-hallucinogenic cousin — at school.
The
need for better standards about when marijuana endangers kids is
growing by the day, said Maria Green, a Lansing, Michigan, mother who
lost custody of her infant daughter for three months last year.
Green
grows pot to treat her husband's epilepsy, and though Michigan's
medical marijuana law states parents shall not be denied custody or
visitation with a child for following the statute, a legal dispute with
her ex-husband led to her daughter being placed with a grandparent until
it was resolved.
The ex-husband who brought the complaint declined an interview until talking with his lawyer.
"I
never in a million years thought that they were going to take my
daughter," Green said. "I know that there's a place for child
protection, but I would love to see it used to protect kids from being
actually hurt."
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