Drug Testing in Custody Cases (Part 1)

The abuse of alcohol and/or drugs by a parent can have an enormous impact on their children’s lives. That impact can range from the irrational or angry behavior of a parent under the influence, exposure to drugs or drug use, or safety concerns related to a parent who is under the influence and caring for the children.

No parent is perfect, and even conscientious parents will make mistakes along the way. This is not a blog about the night you had one too many drinks at a dinner party and your children saw you intoxicated. While I am not advocating drinking to excess, having a beer or a glass of wine at dinner is not harmful to your children (Assuming you don’t try to drive or operate heavy machinery – I always wondered if this meant it was safe to operate “light” machinery? But I digress)

Rather, this blog is about a parent who abuses legal or prescription drugs, how you as a parent can ask a court to order drug testing and what you need to consider when making this order.

We previously blogged about what was required to persuade a court to order drug testing of a party. Not surprisingly, that blog was in relation to the custody battle Charlie Sheen and Brook Muller engaged in during early 2011.   If you did not read it, go back and take a look since it is a critical first step.

In requesting an order for drug testing there are many details you need to consider when making the request they are:

  1. What type of test?
  2. Who will pay for the test?
  3. Will it be at a licensed facility?
  4. How much lead time does the other party have to test?
  5. What substances will be tested?
  6. What happens if the test comes back positive?
  7. Are the test results admissible in court?

Every situation is different, so it is important to discuss these questions with your attorney before you make a request for drug testing. In Part 2 of this blog, I will explain the questions with some answers to help you in evaluating what fits your situation best.

In almost any case, you will want to request an order that the results are admissible in court. The drugs test results are hearsay, so absent an exception, they are not admissible, so you cannot use them. Making sure the results can be used is very important.

Often times, the parent accused of using drugs will deny the accusation. Do not get frustrated when they do so. Use their denial as a basis to get the drug tests ordered and admitted. Often, in an effort to look innocent, a party will agree to submit to testing and for the results to be admitted, especially when they are standing in front of a Judge. An experienced family law attorney will know how to use this to your advantage.

Not all cases warrant a request for drug testing, and there are circumstances that making the request can backfire on you. That is why it is important that you have a qualified and experienced family law attorney by your side.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.

Nancy J. Bickford, a Certified Family Law Specialist (CFLS) is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin and end with keeping your kids where they belong: With you.


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