Divorce and Drug Testing Laws

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 Can I Have My Spouse Tested for Drugs During a Divorce?

Yes, drug testing your spouse is legal. During a divorce, one spouse may submit a request to have their soon-to-be ex-spouse drug tested. It will ultimately be up to the court to determine whether or not to order tests. Furthermore, a court may order drug testing without the request of any side.

A court will often order drug testing or allow a motion to file for drug testing only if there are grounds to think drug misuse is taking place. Drug misuse evidence might include information supplied by spouses, witness testimony, or recent past drug convictions.

What Are the Reasons to Have a Spouse Drug Tested During Divorce?

If one spouse suspects or knows that the other spouse is taking drugs, there are two major reasons why they should be drug tested:

  • Proof of frequent drug usage: This would be very beneficial in securing a fault divorce.
  • Child custody: This might bolster a case for sole custody of any children.

Furthermore, failing drug tests may be grounds for changing a custody arrangement. Remember that “sole” custody does not always imply “exclusive” custody; rather, one party has a substantial majority of the child’s custody rights.

Remember that if one spouse asks for a drug test for the other, that spouse is likely to seek the same drug test for the asking party. A judge who grants one request will usually allow the opposite party’s request for drug testing as well.

Can the Court Drug Test Without Warning?

If enough information is produced to convince a court that unlawful drug usage is a problem in a case, the judge may order a divorce drug test of one or both parties without a formal request from either side.

The court also recognizes that the element of surprise in requesting a party to be drug tested may be crucial; hence, a judge may allow a party to ask another party to be tested without a formal request being made before the hearing.

Is Drug Testing for Child Custody an Option?

A court may require drug testing for child support for one of two reasons.

The first is if the opposing party seeks it and the court determines it is appropriate under the circumstances. The second is if the court finds on its own that a drug test is relevant to the eventual child custody determination.

Child custody judgments are made using the best interests of the child criteria. Before giving or denying custody to one of the parties, the court will consider several issues, including the child’s age and the parent’s financial condition.

Thus, drug testing is one piece of evidence that a court might use to determine whether putting a kid with a parent is in the child’s best interests. For example, if one parent is a frequent drug user while the other is not, the court might award custody to the parent who provides the safest environment for their kid.

Examples of drug tests that a judge may order in a child custody lawsuit include:

  1. Urine samples tested for multiple substances (sometimes known as a panel);
  2. A nail examination test;
  3. A tube of saliva or spit; or
  4. A sample of a person’s hair

Even though these are medical examinations, a person might be tested within the same day of their child custody proceedings. Same-day testing is done to guarantee that the person is not tampering with or lying about their drug usage or test results.

Related Article: How to Prepare for Your Child Custody & Visitation Consultation

When will the Drug Test Happen?

Because a day or an hour may significantly influence results in drug testing, a judge will usually compel a party to submit to a drug test within hours of the court hearing.

In certain situations, the opposing counsel may already have a testing facility employee in the courtroom to administer the drug test shortly after the court session.

What Kind of Drug Test will be Requested?

The sort of test ordered by the court will be determined by the charges in your case, including the type and frequency of suspected drug usage.

A court could order a urine test. A court may also order a hair or nail test in other instances. A urine test is generally requested in conjunction with a hair or nail test.

How Long will the Drugs be Detected on a Test?

The detection window for drugs varies depending on the kind of drug, the quantity of drug used, and the frequency of usage:

  • Body hair test: Some drugs may be detected in a body hair test for 7 to 12 months.
  • Head hair test: Drugs may be detected in a head hair test for up to three months.
  • Fingerprint test: Drugs may be detected in a fingerprint test for 3 to 5 months.
  • Nail test: Drugs may be detected in a complete nail test for 8 to 12 months.

What Should I Do If I Fail a Court-Ordered Drug Test During a Divorce?

There are implications for child custody if you fail a drug test or if the other party fails a drug test during divorce proceedings.

The court may order that the failed party have little to no contact with the kid and that any contact be monitored.

Sometimes the courts may inquire whether there is a family member who could supervise the child’s visits. If not, the most severe kind of supervised visitation is either Family Court Services or another court-approved monitoring facility.

Related: How to Prepare for Your Consultation with Your Divorce Lawyer

In addition, if there is a history of illicit controlled drug usage, the court may mandate that you engage in a rehabilitation program before the failed party gets any contact with the kid.

In reality, the court may impose several conditions on the failed party before granting them visitation with the kid. Again, most courts would order supervised visitation with the kid, although it may be restricted to a certain number of hours per month.

Courts have also begun to issue injunctions requiring a party not to use an unlawful controlled drug during a specified amount of time (for example, 72 hours) before custody or access to the kid starts. This is also something that any side may desire.

Furthermore, in final orders, a judge might order that you submit to random drug testing at any point in the future if the opposing party requests it and pays the testing charge.

Drug use is usually a major component in child custody proceedings. If you are proven to have failed a drug test during a divorce, you may lose custody of your kid. That is just not worth it because you will have to spend time showing the court that you are clean, sober, and capable of being a responsible parent.

In these cases, it is always best to hire a lawyer. Your lawyer can order a re-test, show the judge that you are not a habitual user, and fight for child custody on your behalf.

Do I Need a Lawyer for Help With a Divorce?

Trying to acquire a divorce and custody rights is challenging enough, but it gets more difficult when drug usage is involved.

A divorce attorney will be experienced in filing the necessary papers and utilizing test evidence to assist you in fighting your case.

Similarly, if you fail a court-ordered drug test during a divorce, your attorney can assist you in mitigating the damages.

Use LegalMatch to find your lawyer today. Your future may depend on it.

Save Time and Money - Speak With a Lawyer Right Away

  • Buy one 30-minute consultation call or subscribe for unlimited calls
  • Subscription includes access to unlimited consultation calls at a reduced price
  • Receive quick expert feedback or review your DIY legal documents
  • Have peace of mind without a long wait or industry standard retainer
  • Get the right guidance - Schedule a call with a lawyer today!

16 people have successfully posted their cases

Find a Lawyer