Colorado Business and Family Lawyer Blog

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 an evidentiary 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.

Continue reading "Medical Marijuana & Child Custody Case: Colorado Court of Appeals" »

Case Study: What Happens to Inherited or Gifted Property in a Colorado Divorce?
Prior to getting married, Casey and Cameron each owned their own house. Cameron inherited his house from his parents when they passed away in a boating accident. In anticipation of the wedding, Casey sold her home and moved into Cameron's place. Casey deposited the sales proceeds from her house into an individual savings account. Two years after they got married, Casey and Cameron refinanced the house for a better interest rate and in the process changed the title so that they held the property as joint tenants. Five years into the marriage, Casey received a $10,000 gift from her grandparents (who are alive and well living in Florida). She used this money to pay for a new garage door and repairs to the redwood deck. Casey and Cameron are getting divorced. Cameron's lawyer tells Casey that the house belongs entirely to Cameron because he inherited it. What rules apply to the division of a) Casey's savings account b) the house Cameron inherited from his parents and c)the $10,000 gift from Casey's grandparents?

Property acquired prior to marriage is considered separate property. So, Casey's savings account remains hers alone and it is not subject to division in the divorce. Any increase in the value of her separate property that occurs during the marriage (i.e. interest earned on the savings account) will be marital property. But the principal balance remains separate. That said, nothing prevents the Court from giving more of the marital property to the spouse who lacks separate property, if it sees fit to do so. The law calls for equitable distribution. "Equitable" does not necessarily mean equal. The Court may also consider each spouse's separate property, if any, in determining spousal maintenance (i.e. alimony).

Continue reading "Colorado Divorce: Division of Property Received by Inheritance or Gift" »

Blog author and attorney Laurel Anne Markus will be presenting on the topic of Medical Marijuana and Parenting Time at an upcoming Colorado Bar Association CLE conference. She will be joined by Sunni Ball, Domestic Relations Program Manager at CASA of the Pikes Peak Region. They will discuss relevant considerations to the allocation of parenting time and decision making responsibilities when a parent is using legally prescribed medical marijuana.

When: May 24, 2010
Time: 12:00 - 1:00 p.m.
Where: 1900 Grant St.
3rd Floor
Denver, CO 80203

Open to attorneys and the public. Register at the Colorado Bar Association website.

1. Recognize you are in a negotiation. When I took my first negotiation class with professor Stuart Diamond of the Wharton School of Business, he challenged us all to begin a lifetime habit of noticing the little negotiations we get into everyday. Your wife begins dropping hints about a new car. Your toddler is throwing a tantrum in the supermarket aisle. The repair shop calls to inform you that your car needs an $1,800 repair. Often we see these situations as problems, but fail to notice the opportunity. We are in negotiation all day long and we can either blindly stumble through these interactions (ignoring the wife, quieting the child, and paying the mechanic his asking price) or we can use these opportunities to practice our negotiation skills.

2. Clarify your goals. Sounds simple enough. But I can't tell you the number of times I've worked with clients who had only a vague idea of what they wanted to accomplish in a contract negotiation. Take a few moments to jot down specific short term and long term goals. Include not only what you want from this contract or venture, but how this particular agreement fits into the bigger picture.

3. Consider the value of the relationship. In their classic text "Getting to Yes", Fisher & Ury assert that positional negotiation damages relationships. What's positional negotiation? Think of the typical scene of a buyer and seller bargaining at your local flea market ("I'll give you $5.00 for this used book. " "I couldn't possibly accept less than $20.00"). Positional bargaining assumes a zero sum game in which every dollar you win is a dollar lost by the other side. You can see that stubbornness, an exaggerated opening position and use of collateral power are all successful strategies in positional bargaining, for the short term. They may work fine if you are engaged in a one time interaction, but when you are setting up a partnership that you hope will last for years, this negotiating style tends to create bitterness and hostility. Skillful negotiators broaden their viewpoint to take account of the value of loyalty, cooperation and goodwill over the long haul in a collaborative relationship.

Continue reading "Key Steps to Prepare for Negotiation" »

Civil protection orders are intended to promote safety, reduce violence and prevent serious harm or death. In Colorado, a civil protection order typically prohibits an abuser from threatening or harassing you, coming within a certain distance of your home or contacting you in any way. It may also order the abuser to stay away from your workplace, place of worship or other specific locations. The protection order can include minor children as protected parties and the Magistrate can enter orders regarding temporary responsibility for care and custody of the children which will remain in effect for up to 120 days. C.R.S. 13-14-102 (14)(e).

A temporary protection order is granted based on an "ex parte" hearing which means that the Magistrate hears only one side of the story. A hearing is set within 14 days, so that both parties will have an opportunity to present the facts to the court. At that time, the court will either dismiss the temporary protection order or enter a permanent protection order (PPO). The PPO is permanent with regard to the adults involved. However, if the restrained party has a legal parenting or custodial relationship to the children, then the PPO will expire in 120 days with regard to those children.

For this reason, it is important to open a child custody case (called an "allocation of parental responsibilities" in Colorado) immediately after requesting a permanent protection order. Opening such a case is necessary to secure court orders regarding the rights and responsibilities of each parent to care for the children over the remainder of their childhood. Failing to open a child custody case has sometimes resulted incidences of family trauma when one parent withholds the child from the other parent without justification.

Continue reading "Colorado Civil Protection Orders: Plan for Safety" »

While reading the New York Times this morning, I came across a blog by Lisa Belkin called Motherlode. The blog explores Ms. Belkin's "adventures in parenting" and two recent entries focused on the experience of stepparenting. On March 24th, guest blogger Jennifer Cullen provided an interesting look at stepparenting and blended families which was particularly insightful and honest. Another entry describes recent research on stepmothers published by English psychology professor Lisa Doodson.

For readers interested in more information on nonlegal aspects of blended families, I would suggest a look at the following resources:

Stepcoupling, by Susan Wisdom and Jennifer Green, Three Rivers Press (2002).
ISBN 978-0609807415

Wonderful Ways to be a Stepparent, by Judy Ford and Anna Chase, Red Wheel (2009).
ISBN 978-1573241472

Stepchildren Speak, by Susan Phillips, AWYN Publications (2004).
ISBN 978-1893471092

The Stepfamily Foundation website, edited by Dr. Jeannette Lofas.

In our myths and fairy tales, stepparents have a bad reputation. They are portrayed as scheming, uncaring and dangerous characters. In real life, the vast majority of stepparents are trying their very best to provide a loving environment for their partners' children, despite the challenges presented by their situation. Most stepfamily members aren't really worried about poisoned apples or other fanciful threats. But if there is one topic that still raises the spectre of the Evil Stepparent, then surely it is the use of physical discipline (i.e. spanking or other forms of physical force).(1)

As a general matter, in criminal and tort law, no one is allowed to hit another person.(2) An exception is permitted to parents, allowing them to use "reasonable and appropriate physical force upon a minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person". C.R.S. 8-1-703(1)(a).

A parent can delegate this authority to another person, such as a babysitter, teacher or stepparent. As a practical matter, however, teachers and childcare providers almost never use physical force with children (other than restraining a child who is threatening himself or others) for the obvious reason that any lack of clear authority from the parent would leave them liable to civil and possibly criminal sanctions. Similarly, a stepparent who does not have written authorization from their partner to use physical discipline, specifically outlining what types of discipline are permitted, takes the risk that a misunderstanding will occur and the stepparent will be held liable.

Continue reading "Colorado Stepparents: Physical Discipline" »

According to the National Stepfamily Resource Center, approximately one in three Americans is a stepparent, a stepchild or a stepsibling. If we include households where a single parent is cohabitating but unmarried, the number of stepfamilies would be even larger. Millions of adults are playing a parental role in the lives of their partners' children each day. Naturally, the question will arise from time to time:

What exactly are the rights and responsibilities of stepparents with regard to their stepchildren?

The simple answer is "none". From a legal perspective, a stepparent has no inherent rights or responsibility for the children of his or her partner. There is no obligation for a stepparent to provide financial support or supervision for their partners' children. A stepparent also has no right to discipline the children, to authorize medical treatment or to enroll the children in school. In many respects, a stepparent who has not adopted his or her partner's children stands in the same relationship to them as a babysitter or teacher. The stepparent's relationship with their partner's children is derived solely from the parent's delegation of certain rights and duties.

For many families, this arrangement works perfectly well. Legal status is by no means a prerequisite to a satisfying relationship between a stepparent and child. There are drawbacks, however. The lack of a legal relationship may create some limitations, for example an inability to include the child in some employers' health care plans and ineligibility to inherit from the stepparent under most states' intestacy statutes. In the event of a breakup, the stepparent may no longer be permitted to have a continuing relationship with the stepchildren unless their ex-partner voluntarily facilitates these visitations. In limited circumstances, a stepparent may be able to seek an allocation of parental responsibilities pursuant to C.R.S. 14-10-123(c).

Continue reading "Colorado Stepparents: Rights and Responsibilities" »

Family law professionals need to answer fundamental questions such as (1) Does daily, low dose intake of marijuana affect an individual's ability to parent effectively? (2) If there is an effect, is the effect beneficial or harmful? Perhaps a parent taking low dose marijuana is more patient and relaxed than a parent suffering from chronic pain. (3) What dosage of marijuana is appropriate for an individual who is primarily responsible for the care of an infant or young child? In other words, at what point is a parent simply too high to do their job safely? (4) What are the developmental impacts, physical and psychosocial, on children in households where one or more family members are regularly smoking or ingesting marijuana regularly? (5) Does limiting children's exposure to the actual marijuana usage also limit developmental impacts? (6) Does second-hand marijuana smoke pose a health risk to children? If so, what safeguards are appropriate to minimize their exposure. Similarly, what steps should parents take to prevent children from getting into the parent's "special" brownies inadvertently? (7) Should Colorado family courts routinely order parents not to operate a vehicle with children in it while under the influence of marijuana, as a civil matter? Moreover, should violation of that order constitute grounds to restrict parenting time under Colorado Revised Statute §14-10-129(4)?

Perhaps the most significant determination that Courts will need to make is how to weigh the risks of medical marijuana exposure when it comes down to a choice between two otherwise capable and committed parents. Will the uncertainty associated with "parenting under the influence" may be enough, in itself, to tip the scale away from the using parent as the primary residential caregiver? Parents considering medical marijuana use should proceed cautiously, particularly if divorce is a likely prospect or currently in progress. Detailed analysis of your particular facts and a plan to implement appropriate precautions to address the concerns raised above, may help to reduce the legal risks for parents who are legitimately taking prescription marijuana.

While a divorce case is pending, the parties' daughter tells her Colorado Springs high school counselor that mom is using drugs. The school makes a mandatory report to child protective services and the family court judge subsequently orders mom to undergo drug testing. The test comes back positive for marijuana. Mom demonstrates to the Court that she has obtained a medical marijuana registry identification card from the Colorado Department of Public Health. She reports that her doctor prescribed medical marijuana to treat chronic leg pain resulting from a car accident eight years ago. What effect, if any, will these facts have on the Court's ruling regarding primary custody, mom's parenting time and the children's best interests?

The discovery of marijuana use by a parent used to lead to fairly predictable results in the 4th Judicial District. Supervised parenting time for the using parent, often accompanied by orders to undergo drug counseling and submit to periodic drug testing. Colorado's medical marijuana law (1), frequently referred to as Amendment 20, has changed the analysis and created a great deal of uncertainty for judges and attorneys alike.

Although there are no published cases directly on point, an analogy to other prescriptions medications, particularly narcotics or other mood-altering drugs, may be a fruitful place for the practitioner or concerned parent to begin their research. Colorado case law on point is scarce. But, in general, a parent who used prescription medications appropriately and who was not otherwise impaired by their underlying medical condition, could expect the Court to more or less disregard their medication in the allocation of parental responsibilities (child custody orders).

(1) Colorado Constitution article XVIII, section 14(2)(a), and section 18-18-302(3), C.R.S. 2009.

Continue reading "Medical Marijuana and Colorado Child Custody (Part 1)" »