Given the widespread substance abuse crisis impacting families across the nation, it is no wonder the problem has made its way into the family court system in California.
The court will not demand drug and alcohol testing under normal circumstances. Generally, one of the parents must request it; however, the court will not grant the request unless the requesting parent can offer evidence of the other parent’s substance abuse problem. If the parent has a history of illegal drug use or an alcohol-related criminal history, this constitutes a “preponderance of the evidence” and meets the burden of proof and the court may require drug and alcohol testing.
Can the Family Court Order a Hair Follicle Drug Test?
The short answer to this question is no. The courts may only order drug and alcohol testing done in the least intrusive method. Typically, this means only urine samples. The court cannot demand hair follicle testing even though this method produces more accurate results and provides results reaching farther back in time.
However, a skilled child custody attorney can sometimes negotiate an agreement with the opposing party to get a hair follicle test. This can only be done by agreement, otherwise, testing is limited to urine.
It is important to remember that a positive result on a drug or alcohol test does not automatically mean a parent will lose custody or there will be an adverse outcome in the custody case for the parent who tested positive. This will simply be one of the factors the family court will consider in making a custody order.
Can a Parent Lose Custody of a Child for Failing a Drug Test?
The California State Legislature has enacted various provisions in the Family Code directly addressing the issue. Family Code 3011 (a) provides that in making a determination of the best interests of the child, the court “shall” consider:
(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(5)(A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.
This language creates a mandate on the family court to consider such habitual or continual drug use/abuse, and creates a rebuttable presumption against awarding sole custody or joint custody to parents who have substance abuse problems – implying that the California State Legislature views substance abuse as a crisis directly impacting the safety and well-being of children.
The court may also require “independent corroboration” of drug and alcohol use. This could include documented reports from organizations providing substance abuse services, social welfare agencies, law enforcement, courts, medical facilities, and probation departments. The court will often order that the parent in question undergo drug testing at an approved facility and provide the results to the court.
Remember, the court must act in the child’s best interest. This does not necessarily mean the other parent will ultimately “win” child custody. Although drug or alcohol use on its own is generally not enough to restrict custody, judges typically find any substance use – even casual, occasional use – to be detrimental to the well-being of the children.
Substance use and abuse is often associated with making poor judgment calls, resulting in bad parenting decisions or worse, so the court must acknowledge this in its ruling pursuant to Family Code 3011. Substance use and abuse is also frequently linked to domestic violence incidents requiring a restraining order.
What You Need to Know Before Requesting a Drug Test in Family Court
If you are thinking about filing a request for the opposing party in your child custody case to undergo drug testing, it is important to remember that the court will likely order that you undergo testing as well. The court will probably either order that you are to pay for the testing (subject to reimbursement if the opposing party fails the test) or that you share the cost of testing equally.
Speak with an experienced child custody attorney as soon as possible if you are unsure whether you have justifiable grounds to seek alcohol or drug testing in your custody case. A skilled family law attorney can help navigate your child custody case and assist you in determining the best way to approach drug and alcohol testing on either side of the table. Call Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.