Drug testing in family court may be ordered if one parent believes — or knows — that their former partner is using drugs. Unfortunately, substance abuse is a very serious problem in the United States. According to the National Survey of Drug Use and Health, more than 24 million Americans are addicted to alcohol, illicit drugs, or both.
Drug use can become a family law issue. United States government data suggests that as many as six million children live with a parent who has a substance abuse problem. Parents who are abusing drugs are typically not able to provide adequate care for children. When evidence of drug use or drug abuse is presented to a family court, it can have major ramifications for a child custody or child visitation case. In certain circumstances, family courts may order drug testing of parents.
Know the Law: Family Courts Protect the Best Interests of the Child
Family courts are not tasked with punishing people for substance abuse — even for the use of unlawful drugs. Instead, a family law court is generally focused on protecting the best interests of children. This is the golden rule of child custody cases. While family law cases are handled at the state level — and states all have their own rules and standards — family courts across the country are committed to protecting the best interests of the child.
When drug use or substance abuse is evident, family courts will take whatever action is deemed appropriate to protect the child’s physical safety, psychological health, and emotional well-being. The simple fact is that parents who have serious drug issues may not be able to care for and supervise children on their own. A family court may even decide that they are not equipped to interact with the child without supervision. In the worst cases, family courts may order a parent to stay away from a child until they are ‘clean’.
Drug Testing in Family Court: Understanding the Process
There is no one single way drug testing works in family court. In some jurisdictions, courts are willing to order drug testing in many different cases. They require relatively little evidence before requiring a test. In other jurisdictions, family courts are somewhat reluctant to order drug testing. A parent may need to present a strong case to get mandatory testing of their former partner.
Generally, drug testing is ordered after one parent files a motion seeking testing of their former partner. Though, that is not always the case. Depending on the underlying facts, the court may step in and require one (or both) parents submit to drug tests without any requests being made.
If there are especially serious concerns, parents or other interested parties can seek a temporary order from the court. During this hearing, the concerned parties will have an opportunity to present evidence to the court that indicates why drug testing is appropriate. If the court finds the motion for drug testing to be adequately supported, testing may be conducted through a Treatment Assessment Screening Center (TASC). This means that drug testing can be conducted on the very same day that the temporary motion is issued.
Making a Motion for Drug Testing: Most Courts Order Mutual Testing
Parties in a family law case have a right to file a motion for drug testing. If you are considering filing a motion to order drug testing, there are several important things that you should keep in mind. First and foremost, family courts often order mutual testing when they grant such a motion. If you want your former partner to take a drug test, you should be prepared to submit to a drug test as well.
Beyond that, it is crucial that parents understand that family courts will not automatically order testing. Drug testing is invasive. Family courts only mandate such testing if there is a legitimate basis to do so. In preparing a motion for drug testing, it is imperative that you put together a strong, persuasive case that testing is appropriate. Any evidence of drug use or substance abuse should be included within the motion. Evidence comes in many different forms, from personal testimony to third-party witness statements.
The Types of Drug Testing
Not all drug tests are the same. There are several different methods of drug tests; which specific type will be ordered by a family court depends on a wide range of different factors. Indeed, in some cases, courts may even order a parent to take multiple types of drug tests. Some of the most common types of drug testing order by family law courts include:
- Urine Sample Test: A urine sample is the most common type of drug test used by family courts. It is considered to be the ‘least intrusive’ method of drug testing. Though urine testing is considered to be effective, a urinalysis can only pick up drug use that occurred within the last few days or even the last few hours.
- Hair Follicle Test: In some cases, family courts will require parents to take a hair follicle test. This is considered to be a more invasive method of drug testing — thus it is somewhat disfavored when compared to a urine test. However, hair follicle testing can pick up drug use from as far back as 90 days.
- Blood Testing: Finally, a family court may also order blood testing. This is considered to be an especially invasive type of drug testing. As such, it is used less frequently than urine tests or hair follicle tests. However, there are many different reasons why blood testing may be ordered by a family court. Notably, if there is strong evidence that a parent has a substance abuse issue in the past — arrests records, seeking drug treatment, admitting to drug use, a history of failing drug tests, etc — then blood testing is more likely to be mandated.
What Happens If Someone Fails a Drug Test?
If a parent fails a drug test, it will have serious ramifications for their child custody or child visitation case. In fact, even one failed drug test could potentially result in a person losing their parenting time or even losing their decision making authority. That being said, all family courts review these issues on a case-by-case basis.
In some cases, a failed test will lead to a court initiating a deeper investigation of a parent’s drug use and their general conduct. In other cases, a family law judge may enter an emergency, temporary order as soon as a parent fails a drug test. If entered, this order will temporarily strip that parent of decision-making authority and/or their right to have unsupervised time with their child. When supervised parenting is ordered, the parent who failed the drug test will have to prove that they are clean for a pre-specified period of time to have their full parental rights restored.
Your Former Partner Passed a Drug Test, But You Are Still Worried — What Now?
Drug testing is far from perfect. A person could pass a drug test even though they use prohibited substances on a regular basis. In fact, people with serious addictions sometimes pass tests. If your former partner passed a drug test, and you believe that they are still unable to provide adequate care for your child, you still have legal options available. At this time, it is generally advised that you seek professional legal guidance. Your family lawyer can help you determine what specific actions you should take to ensure that the health, safety, and well-being of your child is fully protected. In some cases, you may be able to get a family court to order further drug testing or to order a different form of drug testing.
The team at Modern Law is carefully crafted with individuals who all love what they do and have a deep-seated commitment to clients going through stressful and emotional situations. We can help with all your family law needs whether its divorce, custody and child support, spousal maintenance, alimony, relocation of children or contempt. When you have hit the last straw, call Modern Law.