In general, drug testing is when an individual undergoes a particular medical exam that looks for the presence of drugs and illegal substances.
A court may order a party to a child custody dispute to undergo drug testing. There are two main reasons as to why a court may order a party to be drug-tested. The first is if the other party requests it and the court decides it is appropriate given the circumstances. The second is if the court on their own determines that it is important to the final child custody decision.
The decisions for child custody disputes are based on the child’s best interest standard. The court will analyze a variety of factors, such as the child’s age and the financial stability of the parents, before granting or taking away custody from one of the parties.
Thus, drug testing is one factor or form of evidence that can demonstrate to the court whether placing a child with a parent is in their best interest. For example, if one of the parents is a habitual drug-user, but the other one is not, then the court will most likely grant custody to the parent who provides the safest environment for their child.
Some examples of the types of drug tests a court may request in a child custody case include:
- A urine sample that tests for various drugs (i.e., a panel);
- A tube of saliva or spit;
- A sample of a person’s hair; and/or
- A test that examines the person’s nails.
It should be noted that although these are medical exams, a person can be “surprise” drug-tested on the same day as their child custody hearing and while at the court. This is to ensure that the individual is not tampering or lying about their drug use and test results.
What are Reasons that the Court May Order Drug Testing?
Aside from the primary reasons discussed above, a court may order drug testing when there is evidence of use, such as witness testimony, recent drug-related convictions, or prior drug habits. This is especially true when one of the parties accuses the other of being a drug user. The court will not just take the word of the accuser, they will ask for proof. The court may also require the accusing party to take a drug test as well.
Again, the court’s main concern is that the child is cared for and placed in a safe environment. While the court cannot take a child away based on an accusation, they can if there is substantial evidence of drug use and if the party’s home is not fit for a child due to drugs.
In addition, it is important to keep in mind that even legal drugs can lead to a parent losing custody if the parent is abusing them and the child has easy access to the legal drugs. The court will consider this factor as well in making their decision.
What Happens If You Refuse a Court Ordered Drug Test?
If a party fails a court ordered drug test, then the court may deny them custody of the child. However, courts are not keen on severing all ties between child and parents. Therefore, while the parent can be denied custody, they may still retain some visitation rights.
On the other hand, if the party completely fails to even take the drug test (as opposed to taking it and receiving failed results), the party can lose all parental rights over their child (e.g., physical and legal custody). It may even result in jail-time for that party.
Generally speaking, when a party refuses to take a court-ordered drug test, they should expect to receive severe legal consequences. That applies to all cases, not just child custody disputes.
If a child services agency requests a drug test, however, the party may be able to refuse it if the court permits it.
How Does Failing a Drug Test Affect Custody Determination?
As previously mentioned, the court will not normally sever all ties between a child and their parent based on a failed drug test. They prefer to keep families together. However, they may reduce a person’s parental rights from custody to visitation only if they fail a drug test.
Depending on the case, the court may allow a parent to gain back some of their rights or have custody modified in the future by setting up a treatment plan and agreeing to regular drug testing.
These types of cases become much more difficult when both parents are deemed unfit to raise or have custody of a child. If both parties are unfit to raise the child due to regular drug use, then the court can take away custody from them and award it temporarily to a third party.
How Else can Drug Use Affect Custody Determination?
When a parent uses drugs in front of a child or creates a situation in which the child is given easy access to drugs, then this behavior can result in jail time for that parent based on child endangerment laws. These laws make it a crime to endanger the life or well-being of a child based on an adult’s reckless conduct.
Aside from receiving jail time, violation of child endangerment laws can also lead to being subjected to mandatory visits from a state government agency or child protective services. This means they can show up at the person’s home without warning and conduct regular inspections for drugs or other harmful items.
A parent who repeatedly violates child endangerment laws or these regular home visitation checks can lose full custody of their child. If both parents continue to behave in a way that is harmful to the child, then a court may take away custody and order the child to be removed from the home.
What Does a Custody Order Look Like When Drug Use is Involved?
A court-ordered child custody order provides instructions regarding the parents’ custody arrangements. The order will state which parent has full custody, whether custody is joint or sole, the type of custody, and so on.
When the order is part of a dispute that involves drug use, then the court will include a visitation schedule for the non-custodial parent. Until the parent can prove that they have stopped abusing drugs and can provide a safe environment for the child, the court will most likely order supervised visitation. This means that a representative will be present during the child’s visit with that parent.
In addition, the type of drug that appears in the drug test results will also have consequences on what rights the parent retains and how much time they may be permitted to spend with their child. For example, a parent who smokes marijuana may be asked to refrain from using it in front of the child and to keep it out of their reach.
On the other hand, a person who uses drugs like heroin or cocaine, can have their parental rights and quality time with the child significantly reduced.
Can I Request a Modification of the Court Order Based on My Sobriety?
If a parent has received treatment and remained sober for a long period, then they may request to have their child custody order modified. Basically, the parent will file a petition for modification, stating the circumstances have changed. The court may ask the parent to show proof of these changes, such as submitting a certificate for completing a drug treatment program.
In some cases, the court order may already state the modification conditions without the parent having to request it. For instance, the court may include in the order directions that state how long the parent must be clean for and when they may be granted back some rights like extended or unsupervised visits.
However, if the other parent believes they have relapsed or are continuing to use drugs, then that parent can request a drug test before modifying the order in a custody case.
Should I Hire a Lawyer for Help with Drug Testing and Child Custody Issues?
Child custody disputes are difficult enough to manage without a drug testing issue. When a drug-testing issue becomes part of the dispute though, things can get even more complicated. Therefore, in order to ensure your rights are being adequately protected for both issues, you should contact a local child custody lawyer for further legal assistance.
Your attorney will not only be able to help you with the laws affecting child custody, but they can also defend you against accusations of drug use or improper drug testing procedures. Additionally, if you have failed a drug test and are seeking to retain child custody, your attorney can help you devise a plan to submit to the judge to regain your parental rights.