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.