Custody disputes are resolved based on the child’s best interest standard. This standard includes the analysis of a variety of factors such as the child’s age, health of the parents, financial stability of the parents, and the child’s attachment to each parent.  

During a custody determination, the court may order drug testing in the best interest of the child. Courts do this in order to in determine that the environment in which the child will be placed will be safe, and that the custodial parent has no drug habits that can prevent them from ensuring the well-being of the child.

What are Reasons that the Court May Order Drug Testing?

It is not enough for one parent to simply accuse the other parent of illegal drug use. The court will usually only order the testing of a parent when there is evidence of drug use, which may include witness testimony, recent drug convictions, or prior habitual drug use. If the court determines that there are drugs being used in the home, it may also order that the other parent be tested as well.

The court may delve further into whether either parent is using drugs in the presence of the child and whether the child has easy access to drugs to drugs because of the parent’s drug use (such as when a parent keeps marijuana near the presence of a child).

Keep in mind that even legal drugs in the household may lead to a removal order if the parent is abusing these drugs and the child has access to the drugs. Ultimately, the court will consider what effect the parent’s drug habit is having on the child.

How Does Failing a Drug Test Affect Custody Determination?

A court may deny custody to the parent who is shown to be a drug user and whose drug use is detrimental to the child. However, courts are reluctant to sever all ties with parents, so it will try to consider other options.

In lieu of cutting off all access to the child, the court may order only supervised visitation or require that the parent complete drug treatment before they can visit the child.

It gets more complicated when both parents are found unfit to parent the child because of their drug use. In this instance, the court may decide to award temporary custody to someone else who can satisfy the best interest of the child.

How Else can Drug Use Affect Custody Determination?

Using drugs in the presence of a child or creating a situation where the child might have access to drugs is considered child endangerment and may result in jail time for the parent(s). This may also lead to the involvement of child protective services and the requirement of regular evaluations of the entire family.

The evaluation will look at whether there is drug abuse still happening in the home and whether there are other events in the home that may be harmful to the child. If these evaluations determine the child is in danger in the home, the court may order removal of custody from one or both parents.

What Does a Custody Order Look Like When Drug Use is Involved?

Court-ordered child custody arrangements will reflect the terms and conditions under which either parent will have custody over the child. This custody may be joint or sole. The court order will also outline the conditions under which the non-custodial parent will be able to visit the child. As stated above, the court may order that the parent with the history of drug abuse only be allowed to visit the child with supervision.

In addition, the court may include future drug-testing requirements. These drug-testing requirements will depend on the facts of the case. For example, the court may order that the non-custodial parent successfully complete treatment and several weeks of negative testing before the first visit with the child, or it may order the cessation of visits when a parent fails their first drug test following the date of the custody order.

Can I Request a Modification of the Court Order Based on My Sobriety?

The court order may include the conditions under which the drug-testing requirements will end. However, even if the order does not address the issue, the parent can always file a petition for modification of the court order if they can show that there has been a change in circumstances since the court order was put in place.

For example, if the parent can demonstrate that they have successfully completed a drug treatment program and have passed all court ordered drug tests, they may request that the court revise the order to allow unsupervised or extended visits with the child.  

Should I Hire a Lawyer for Help with Drug Testing and Child Custody Issues?

Child custody issues can be quite complicated and are often heavily contested. In order to ensure your rights are protected, you should consult with a qualified child custody attorney in your state.

Your attorney can help argue on your behalf if there are drug use allegations. They can also help you highlight any facts that may weigh in your favor during a determination of custody.