Drug Testing in Custody Cases

 

Drug and Alcohol testing in a custody case

In determining the child's best interest, trial courts also must consider either parent's “habitual or continual” alcohol abuse, their “habitual or continual” illegal use of controlled substances, or their “habitual or continual” abuse of prescribed controlled substances. Before considering allegations of a parent's drug or alcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services.

Court ordred testing for illegal drug/alcohol abuse: Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances or alcohol; and may order either or both parties to pay the costs of such testing. For years, the court routinely ordered a parent to take a hair follicle drug test, but in recent years that has been limited by the court and the holding in the Wainright case. Now, the court can still ordered a drug test, however, the court can only order a urine test. However, if a parties agrees to take a hair follicle drug test, the court will accept the stipulation of the party and order a person to drug test using a hair follicle drug test. (The statutory conditions are intended to address the constitutional concerns noted in prior case law that interpreted the then-existing Family Code as not authorizing compelled drug/alcohol testing in custody litigation (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266–269, 100 CR2d 749, 752–754).) First of all, there must be a judicial determination based upon a preponderance of evidence that there is the “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” by the person seeking custody or visitation (parent, legal custodian, person seeking guardianship or person seeking visitation in a guardianship). The determination may be based on (but is not limited to) evidence of a conviction within the past five years for the illegal use or possession of a controlled substance. The example that I often use is when someone does drugs one time at a New Years Eve party and then is hauled into court the following week. In that situation, the one time use is not sufficient to order someone to take a drug test-their is a difference between use and abuse. The code is quite clear in that it must be habitual, frequent and continual. They are still chain of custody issues with taking a drug test. We would strongly recommend that the lab doing the test is a title 17 certified lab and never agree to a home based test. The court must order the “least intrusive” method of testing. And, any substance abuse testing must be performed in accordance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.

Presently, the federal drug-testing standards only allow for urine tests; thus, e.g., the court may not order a parent (or other custody/visitation claimant) to submit to a hair-follicle drug test under § 3041.5. [Deborah M. v. Super.Ct. (Daryl W.) (2005) 128 CA4th 1181, 1191–1194, 27 CR3d 757, 764–766 (also noting that proposed amendments to federal standards permitting hair-follicle and other alternative testing methods have not yet been adopted)]

The test results may not be used for any purpose (whether criminal, civil or administrative) other than to assist a court adjudicating custody or visitation in determining the child's best interest pursuant to the family code and the content of the custody/visitation order or judgment.

So the test is positive, so then what?

Effect of positive test results

First, the party has the opportunity to challenge: The person who underwent the testing (parent or other custody/visitation claimant) has the right to a hearing, on request, to challenge a positive test result. In rare instances, there are false positives due to something a person ate or an interaction from a prescription drug.

 

Not sole basis for denying custody: Even if challenged and upheld, however, a positive test result “shall not” itself constitute grounds for an adverse custody (or guardianship) decision.

Lastly, Confidentiality of test results: The test results “shall be confidential” and maintained in the court file as a sealed record. The results may not be released to any person except the court, the parties, their attorneys, the Judicial Council (until completion of its study of the testing process, see Stats. 2004, Ch. 19, § 2(b)) and any person expressly granted access by written court order made with prior notice to all parties. Further, any person with access to the test results may not disseminate copies or disclose information about the results to anyone not authorized to receive the results pursuant to the statute.

That can be a lot of issues when dealing with drug testing in a custody case. The Law Offices of H. William Edgar has handled this issue many times over the years and can answer all of your questions and concerns and strategies that work in court. Contact the Law Offices of H. William Edgar today for a free consultation to discuss your custody and visitation case if there are concerns about alcohol or drug abuse.

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