Drug and Alcohol Testing in Child Custody Cases

At a party on May 8, 2010, I began chatting with a woman who told me the sordid details of her ongoing custody problems after she learned that I was a family law attorney. Among other things, she informed me that the Court had ordered that her ex-husband submit to random drug testing after she convinced the Court of his history of drug usage and its impact on his fitness as a parent. The Court also ordered that he not consume recreational drugs or alcohol within a certain period of time before and during his custodial time with their son. She then explained to me that her ex-husband consistently failed to show up for his random drug testing. She expressed to me her frustration with the system because when she would learn that her ex-husband failed to show up for his random drug testing, she would file the appropriate motion with the Court to advise the Judge of the situation. She told me that she works in the drug rehabilitation field and that a failure to show up is considered the same as having received a dirty test because otherwise, the person would have shown up for the test.

When she would go before the Court, the Judge refused to consider her ex-husband's failure to show up for the random drug test to be the same as a dirty test. Her ex-husband never appeared for any of his random drug tests and the Court ultimately removed that portion of the Order because her ex-husband never received a dirty test.

She then explained to me that her son's performance in school had declined significantly because he was not getting his homework done and would get to school late while in his father's custody. She said that her ex-husband was unable to take their son to school on time because he would oversleep as a result of his substance abuse. She had spent a great deal of money obtaining an Order which the Judge would not enforce and ultimately eliminated. At this point, she was completely frustrated with the entire system and expressed to me that her son would suffer in the long run because of his poor performance in school and for other reasons associated with his father's substance abuse and the fact that the Court seemed completely unconcerned. She did not want to report the matter to the Department of Children and Family Services (DCFS) for all of the reasons set forth in my Blog of May 17, 2010 entitled, "The Real Problem with the Department of Children and Family Services." All that I was able to do for her was to express empathy for her situation, which I tended to believe based upon my experiences with such matters.

Section 3041.5(a) of the California Family Code provides in pertinent part as follows:

"In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.... A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors...."

Studies show that judicial officers "ordered drug tests only 'sometimes' or rarely' in child custody cases in which drug/alcohol issues were involved." "In making a decision to order testing, the judicial officer weighs a wide variety of factors and makes a decision based on the best interests of the child while protecting the child's safety." The factors considered are as follows: (1) credibility of testimony or other allegations; (2) whether a party admits to substance abuse; (3) whether a party agrees to testing; (4) history of substance abuse; (5) reports from medical personnel, family court services, social services, and police; (6) drug type and extent of current drug problem; (7) impact of testing on the party due to the cost and availability of testing facilities; (8) direct observation of the parties in the courtroom; and (9) risk to and relationship with the child.

The studies also show that when drug testing is ordered, parents generally comply with the order. In fact, according to judicial officers, only 13% of the parents sometimes comply, 2% of the parents rarely comply and 0% of the parents never comply. The factors that influence the rate of noncompliance are as follows: (1) cost; (2) availability of testing facilities; (3) awareness of consequences/clarity of court order; (4) disputes about notice; and (5) concern by the parent that they would have tested positive had they submitted to the test. Since there are numerous reasons for noncompliance, the consequences vary according to the facts of the case.

I was recently involved in a case in which the initial judge assigned had ordered that the "father to prove off medical marijuana, enroll in and complete after care program. Neither parent shall use illegal drugs." The case was then transferred to a different judge. We had two hearings in the ten months following that order. Meanwhile, the father had never proven that he was off medical marijuana or that he had enrolled in and completed an after care program. At each of those hearings, I advised the judge of the father's failure to comply with the court's orders. In fact, I requested that the court order the father to submit to random drug testing because of his noncompliance with the court order. The judge refused to order the father to submit to random drug testing and removed from the order the requirement that he "prove off medical marijuana, enroll in and complete after care program. Neither parent shall use illegal drugs."

It is not an easy task to obtain an order that a parent undergo drug testing. When such orders are made, it is in good part because the judge found that "the substance use posed a danger to the safety or health of the child." Under the circumstances, it might be a good idea if judges were to actually enforce those orders. In my case, the judge removed the order rather than enforcing it. If the order was made because it was in the best interest of the child, how is it in the child's best interest for a judge either ignore the order or remove it?

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