In this podcast episode, Brian Walters is joined by Ryan Kalamaya, managing partner of the Kalamaya | Goscha in Colorado. Brian and Ryan discuss family law cases involving marijuana and how they are handled differently between Texas and Colorado courts. Additionally, they consider how THC usage can affect child custody cases and how the courts have changed stances in family law cases involving THC. The attorneys complete this episode by answering a few listener questions on the podcast’s topic.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters: Thanks for tuning in to For Better, Worse, or Divorce, the podcast where we provide you tips and insights on how to navigate divorce and child custody situations in the State of Texas and in this case beyond. I’m Brian Walters, and today I’m joined by Ryan Kalamaya, managing partner of Kalamaya Goscha in Colorado. He’s also a Co-host of his own family law podcast called Divorce at Altitude, and I’m excited to have him on here today. Welcome, Ryan.
Ryan Kalamaya: Thank you for having me, Brian. I’m excited to be here.
Brian Walters: Very good. Well, tell us a little bit about your background. Where you grew up, how you got into law, where do you practice now? It’s a unique place and we’ll go from there.
Ryan Kalamaya: Thanks. I am a family law attorney in a little place called Aspen. I grew up in Colorado and thought I was going to be a professional baseball player until I got to college where I played Division 1.I realized that I was a mediocre professional baseball talent so, I followed my father’s footsteps in pursuing law and ended up in family law in Aspen.
Brian Walters: How’d you choose Aspen over other places? It’s not Denver, Boulder, Colorado Springs or something like you’d expect in Colorado.
Ryan Kalamaya: When I was in law school I put my name in for Bronco season tickets. I thought I was going to be in Denver at a large law firm doing civil litigation and then just kind of happenstance, moved up to the mountains. I got a job in the prosecutor’s office. Then Tim Tebow came along and the waitlist was 10 years when I was in law school, all of a sudden it kind of accelerated and it came to me that I wasn’t going to be in Denver. So, I passed on the season tickets and I stayed in the mountains, but it was just kind of happenstance. I got a job up in the mountains and then I just made my way over to Aspen. I really gravitated towards family law because as listeners probably may recognize Aspen, there’s a lot of wealth that comes in. And as a result, the family law disputes and the divorces tend to be very large, significant and complex. I really enjoyed being in the mountains but I frequently rub shoulders. We get a lot of Texans that come in, especially for the summer.
Brian Walters: Yes, having been in many Texas summers I can understand wanting to be up at a high altitude in the mountains for sure. So, I think what we could discuss today that would be of interest is the very different laws that we have in Texas and in Colorado around marijuana, pot, THC, whatever you want to call it. I think as time has gone on there are other states that have kind of followed Colorado’s lead about legalizing it in part or in full. I know there’ve been Texas tourists, called THC tourists that have gone to Colorado at least early on. I know I had a couple cases or situations like that where I’d have people come back, “Yeah, I tested positive, I went to Colorado.” I guess maybe let’s start with just what the laws are in Colorado as it relates to that. Right now it’s pretty much illegal in Texas. There’s some local jurisdictions that have basically said, “We’re not going to prosecute even if it’s on the books for basically personal use.” So what are the rules there?
Ryan Kalamaya: Colorado was one of the first states to legalize it for medicinal purposes. That was quite some time ago. Now it’s been both legalized for recreational use as well as medicinal use.I know a lot of listeners hear it, and it may be common in terms of usage even though it’s illegal in Texas. However, in Colorado it is recreational and as a result we get a lot of questions from clients about its impact in family law cases, which I think we’ll get into in more detail. In Colorado it really is regulated, so you can go into the cannabis store and you can buy up to a particular amount.
I think it’s an ounce, but it’s for that purpose of recreational use. There’s edibles, there are tinctures, there are pills, and then you can buy loosely if there’s vaporizer pens. There are all different kinds. They’re purchased in a store kind of similar to a liquor store and you have to be carded. It has to be above the age of 18. Then we also have attendant laws in terms of using it or being under the influence of it while driving.
Brian Walters: That makes sense. I’m actually in California at the moment, so it’s actually a lot like Colorado, but let’s say I’m in Texas. Here in Texas it is generally illegal. Although again, I think it very much depends on the jurisdiction, but that’s regarding criminal laws. I think we’re going to talk today about the practical aspects of it in a family law case. So if it’s a divorce between two adults, there are no kids, I don’t think anybody anywhere cares really. But if there are kids involved it can be an issue sort of like alcohol, which is legal, and it’s a question of use and how that affects you as a parent. To me, I don’t think that is terribly related to the criminal aspects of it. I started practicing in the mid 90s in Austin, which is kind of famously not like your stereotypes of Texas. Even back then you’d have a case where mom or dad on Saturday night they’d light up and that would seem to be fine most of the time, or maybe a minor irritant to a parent.
Ryan Kalamaya: Well Brian, you’re exactly right. In Colorado, alcohol and marijuana or THC are essentially the same because they’re both legal. One of the things that we’ve had to navigate is how do we deal with those in parenting disputes? A lot of people may come here to Colorado and even though it’s legal, there’s still this stigma. Certainly for some in Texas. There is a difference within the law in terms of how it’s viewed. What we’ve had to kind of go through is when it becomes a problem, because alcohol, even though it is legal, can cause problems in a parenting relationship. For example, a parent is driving while intoxicated to a particular point, 0.08. And we do have that in Colorado in terms of driving, but it’s sticky and no pun intended – but the difficulty is how do we deal with marijuana and THC in parenting situations?
Also, we don’t really have any testing that is the equivalent of, Soberlink for example. Listeners may be familiar with Soberlink in terms of that immediate testing or a portable breath test where you blow into something. We don’t have that in marijuana or THC. So we have these other issues of is it appropriate to have secondhand smoke, for example, around children? We can have parenting plans that explicitly deal with that. I will tell you anecdotally in Colorado, we do have to navigate the access to it. I may have mistakenly said 18, but under the age of 21 in Colorado, they can’t have access or it’s illegal for them to consume THC.
One issue that we deal with is the labeling and the accessibility. For example, if a parent leaves marijuana in their car or just out on the table, teenagers are over there, then they’re curious and they can get into that. Originally at the very beginning of having legalized marijuana we had these edibles, chocolates, gummies and other things that people have probably heard of, but it wasn’t really apparent that they had THCs. So you would hear these stories about children, parents or other people consuming a gummy and not even knowing that it had THC. Those are some of the issues that we’ve had to deal with in Colorado.
Brian Walters: Yeah, that sounds familiar. It’s sort of like every drug. Alcohol is a drug, THC is a drug, and they each have their own particulars. Again, I think there are two situations courts deal with. One is, does this person have a serious problem that impairs them from parenting safely right now? I think that’s more common with alcohol. They’re just really bad alcoholics. Then there is the second tier where the judge says, “Well, there’s complaints about it and concerns. I’m not convinced it’s an immediate problem, but I’m going to monitor this person.” And the simplest way to monitor them is to simply say, “Don’t take any alcohol, THC or whatever while this case is pending.” Inevitably one parent says the other one has a problem with alcohol, THC, or whatever it is. Then the other parent says, “I don’t even take it, or I’m just a casual user, it’s no big deal.”
They say, “Of course, I’m not an addict.” So the judge thinks, “Well, okay, if you’re not an addict you can just go without it for a year if that’s how long this is going to pass.” So then how do we monitor? That used to be difficult with alcohol because it’s in layman’s terms, I believe a water-based drug. In other words, it washes out of your system very quickly. There’s little or no way to test for it, unless you get really drunk the night before and you test at eight o’clock in the morning. A lot of people will be clean and it’s like you never drank alcohol, versus especially smoking THC and some other drugs that are, as I say, oil-based. They stay in your system, you can test for it in your hair, your nails or whatever. They stay around a lot longer, so it’s easier to test for. They each pose their individual types of problems.
I’ll also say that since marijuana is still illegal in Texas there are some jurisdictions, some of the typically more rural areas that might view it as a problem even in light usage or recreational usage. That’s probably a difference, but you can tell me if that’s a difference in Colorado – or if it’s viewed pretty much the same everywhere.
Ryan Kalamaya: I mean really the judge and the listeners will hear this and they’ll have their own reactions to it. There is for sure going to be some judge that just has their own particular experience or viewpoint. I think it’s really important. Brian, one thing that I’m sure you counsel people on is the familiarity of the judges within terms of their relationship to a divorce and their viewpoint on parenting. I think that really, really matters. In Colorado we had this kind of, “Oh, the sky’s going to fall. We’re going to have mass crime and mass addicts with the legalization of marijuana.” We didn’t really see that. I think it’s been normalized, and that issue has kind of sorted itself out, just as the turnover in the judge. The older judges who may have had a little bit more traditional conservative approach on marijuana, they’ve kind of have moved on.
We’re starting to see these younger judges and I think that that certainly has played a role. One thing I wanted to respond to you on is some of the testing that you mentioned. Testing that we have to deal with here in Colorado. There have been these progressions or these advancements in alcohol. Now you can do an alcohol ETG test where you can tell if someone has drank or consumed alcohol within the last 48 to 72 hours because of the byproduct of ETG. There’s also this PEth testing, which is a blood test that will say whether or not someone has been binge-drinking. I’m familiar with some of those because I just wrapped up a case in which alcohol was a major component that is kind of in contrast to blood or rather with marijuana, if you take someone’s blood test, then you can tell the active versus the inactive THC.
One thing that we don’t have in alcohol that we have in marijuana is that you can actually have a prescription for medical or for medicinal use for marijuana. That also gets into the constitutional diagnoses where someone says, “I have anxiety and I have to take THC.” You don’t have that with alcohol. No one’s saying, “Well, I have to slug seven gin and tonics because my doctor told me so.” So that is kind of a unique aspect. If you get into the testing on marijuana you can discern between active versus inactive users. That requires a blood test which is really difficult to administer when you have a parent or when you’re parenting. A urine test, you can see the byproduct and you can tell whether or not someone has been using THC in the last seven days or two weeks, but it doesn’t tell you when.
Brian, one thing that you and I have to navigate is really focusing on “does it matter for parenting?” Is someone’s consumption, whether it be alcohol or in Colorado THC, does it matter for parenting? A lot of times parents come to us and they’re like, “Well, they use marijuana.” And it’s like, “Well, okay, tell me how that matters for parenting?” If they’re just sitting on the couch and eating Cheetos, they might not be an active parent and they might not be great, but are the children in danger? I can tell you as a former prosecutor I never had a domestic violence case in which someone got really stoned and then hit their ex-wife or soon to be ex-husband or they hit the children. Certainly I’ve seen it where people get drunk and that has happened. You do get into these safety concerns about whether they can respond to an emergency, but really you have to connect it to the safety and the wellbeing of the children.
Going back to the testing, you can’t discern even if you were to allege that the consumption mattered for parenting, it has to be during the parenting time. When you’ve got alcohol it’s a little bit easier to test and to stop the consumption of alcohol if it’s a problem with parenting. You can’t do that with marijuana in the same way.
Brian Walters: Yeah, I agree. They’re each different or unique drugs with unique impacts on each person, and it is difficult for a judge or anybody to monitor what’s going on in either case. I definitely agree.
Well we’ve got some listener questions. We could go over those and it sounds like the first one we’ve kind of answered already, but we’ll go into a little bit more. “Can you request a drug test in a pending child’s custody case?” I think we’ve answered that question that you can, and we’ve talked about how that’s an issue. Where sometimes the testing can be difficult. What are we testing for? Why are we trying to monitor it? All of those kinds of things. I guess I’d add if some people have constitutional questions of why in the world can you do it? Does someone get to monitor my alcohol use or marijuana use if I’m in a state where it’s legal?
The short answer is because you have a child in front of court. Essentially when that happens, you give up a lot of your rights. The state has a right to ensure the safety of your child.
I guess you could just say, “I don’t care. I don’t want to be a part of my kid’s life, I’m going to pay child support and leave me alone.” They will leave you alone and you can do whatever you want to. But if you want to be part of your child’s life and it’s an issue, you lose a lot of your privacy not only in what you consume, but in other things too. That is sort of the same way it is.
Ryan Kalamaya: One of the factors into the best interest of the children in Colorado, and I assume it’s the same in Texas because they kind of all tend to be similar – these different factors are a parent’s health, both physical and mental health. That is kind of a gateway into people’s drug usage and their physical and emotional wellbeing, which drugs can kind of impact. So you can get a test, you can have a parent test, but again, you have to show a connection to why it matters for parenting. Just because someone uses marijuana or someone uses alcohol, a parent is going to have to show that it’s impacting the other parent’s ability to parent. Usually that’s based on history. For example; it was a problem where they either lost their job, they got upset with the children, they were driving and there was some safety issue, or a child consumed alcohol or THC because it was out. You have to show a connection in order for you to get the test to begin with. At least that’s just been my experience in Colorado.
Brian Walters: Yeah, I agree with you. Courts don’t want to monitor parents. They don’t want to micromanage people, but if there’s a concern, then it’s been my experience that they will do that. The other question that we have is “How do different state laws and marijuana impact interstate child custody cases?” I think we’ve touched on this to some extent too. I think it’d be fairly rare, but in scenarios where one parent was living in Colorado, the other was in Texas and there was a custody case going on and the parent in Colorado had been using marijuana let’s say on a light basis once a month for Friday night or whatever. I think that Texas courts most of the time here would respect that and understand that that is legal there, and understand that that’s not going to substantially impact the child.
The court here might say, “All right, but you can’t do it when you have the child or before having the child” or something like that. I think normally the courts can distinguish between what’s a health and safety issue in a parental fitness thing versus a state law. You might find a court here that is in a more conservative or rural jurisdiction that just says, “Well, I don’t care if it’s legal in Colorado. I don’t think it’s right when you’re a parent to be doing that or at all.” So I guess it’s conceivable that it would occur. What are your thoughts on that?
Ryan Kalamaya: I had lunch yesterday in Aspen with a friend of mine who lives in Houston and he was talking about bringing marijuana back with him on the plane. That’s not legal, but the reality is that people are kind of going back and forth. What people do here in Colorado or what happens in Vegas stays in Vegas, but when you have parents, what happens in Colorado could come back and become an issue. I think it really depends on the judge. It is legal here, but again, if it’s going to impact the children, if you want to have a holiday here in Colorado and you want to get stoned with one of your children, then be prepared to kind of face the music back in Texas. You could have a judge that does not think kindly on that.
So I think it really depends, and there’s so many different circumstances in which that can matter. And likewise, I’ve certainly had clients who have thought that it’s just legal everywhere. It’s just commonly accepted because they’re used to Colorado and gone down to Texas and gotten arrested for a felony even though it’s completely legal here. I think the important thing is that people need to understand the laws and how they can vary from state to state. They need to know how that’s going to impact their parenting rights, whether it be in Texas, Colorado, California, or wherever they may be.
Brian Walters: Yeah, I agree with you very, very much. You and I know lawyers in other states. We’re in a couple of groups that would allow us to reach out and find a lawyer quickly in Oregon, Florida or whatever. So as usual, if you have questions, I would talk to a good lawyer about it and I think either one of us could probably help somebody find a lawyer in an area other than Texas or Colorado.
Okay. Well, that’s all we have for today. If you like what you heard today, do us a favor and leave us a review. We appreciate all your feedback, especially when it helps us better the podcast. If you’d like to reach out to Ryan directly, we’ll have his contact information listed in the description. We can’t thank you enough, Ryan, for joining us today. We’ll be back in a few weeks in the next episode. We will see you soon.
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