Drug Testing in Custody Cases (Part 2)

In my previous blog, I raised several questions that you need to discuss with you attorney before you make a request for the party to be drug tested. In this blog I will answer these questions and provide some ideas to assist in deciding whether they are important in your case.

  1. What type of test?

There are two common types of drug tests; hair follicle and urine specimen. Urine tests are quicker and less expensive, but many drugs metabolize out of your urine in a short period of time (less than a week in most cases) so they cannot provide historical use data. Hair follicle test can go back as far as 6 months (I have heard 9 months), but they are generally more expensive.

The easy answer would be to ask for a hair follicle test. Small problem, in California the court cannot order a hair follicle test if the party to be tested does not agree. What that means is if the other side refuses to take a hair follicle test, then the only test a court can order is a urine specimen.

  1. Who will pay for the test?

This is a case by case decision. It will depend on the specific facts of a case. If the Judge seems hesitant because of the cost of testing, you can always offer to advance the cost of the drug test. If the test comes back negative (no drugs detected), then you pay for the test. If the test comes back positive (drugs detected), the other party has to reimburse you for the cost.

  1. Will it be at a licensed facility?

There are several at-home testing kits that you can pick up fairly inexpensively at the drug store. They are generally pretty accurate, but there is no way to bring in the results to court. With an at-home test you will know that the party has taken drugs lately, but it will be difficult to show a Judge.

I always recommend the test be done at a licensed facility. It should be one that is close to the testing parent’s home or work to avoid arguments about inconvenience. This will also be important when it comes to lead time (discussed next) because if the other party works in North County and the testing facility is in downtown or southbay, it is going to be very difficult to manage getting there in time.

When deciding on a facility, also take into consideration the hours they operate and choose one that is compatible with the hours they work.

  1. How much lead time does the other party have to test?

Lead time should be as minimal as possible. In most cases I request that testing be performed within 24 hours of request. Most Judges find that reasonable. Keep in mind 24 hours is not always reasonable. For example, if you demand a test at 3:00 pm on Christmas Eve, there is no way the other side will be able to comply. It is important that you not abuse the order for testing to gain some advantage. Doing so could backfire on you and lead to an unwanted result.

  1. What substances will be tested?

This is a case by case decision. You can choose the standard five-panel test of “street drugs” that includes marijuana (THC), cocaine, PCP, opiates (e.g., codeine, morphine) and amphetamines (e.g., methamphetamine). There is also the nine or ten panel drug test that also includes various prescription drugs, such as oxycodone, benzodiazepines, barbiturates, or propoxyphene.

The more substances tested the more expensive the test. You should discuss this with your family law attorney prior to making the request for testing.

  1. What happens if the test comes back positive?

This will depend on whether this is a new problem or a chronic problem. I have had cases where any positive drug test resulted in automatic supervised visitation (and another that was automatic suspended visitation). In others, it was a basis to request an emergency change in custody. Like most of the questions, there is no single right answer, it will depend on your case and the circumstances.

  1. Are the test results admissible in court?

Technically, the records are hearsay because they are an out of court statement offered for the truth of the matter asserted. I would argue that since the records are a “statement” of the party who took the test, they would fall into the statement of a party opponent exception to the hearsay rule.

Notwithstanding my creative lawyering above, if the Court has ordered the testing, then Family Code Section 3041.5 allows for the records to be used. They must be kept confidential and can only be used on the Family Law case. That means they cannot be used in another civil or criminal action.

There are other questions you will want to discuss with your attorney if you are considering requesting drug tests of the other side. This will include all of the required evidence to persuade the Judge to order the testing. I know I say it all the time, but that is only because it is true. Every case is different, and what worked in one case may not work in another. So it is important that you discuss your rights and options with a qualified family law attorney.

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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