When Are Drug Tests Used in Child Custody Cases?

Substance abuse is a tragic and widespread issue in the United States, and drug and alcohol use plays a major role in many divorce cases. If you are headed for divorce and believe your spouse has a substance abuse problem, it is crucial to address this concern before it endangers your children.

The court will not demand drug and alcohol testing under normal circumstances. In most cases, one of the parents must request it; however, the court will not grant this request unless the petitioner can offer evidence of the spouse’s substance abuse problem. If the spouse has a history of illegal drug use or alcohol-related criminal history, this constitutes a “preponderance of the evidence” and meets the burden of proof.

Court-Ordered Drug Testing

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 for a longer time. It’s important to remember that a positive result on a drug or alcohol test does not automatically mean an adverse outcome in the custody determination for the parent who tested positive. Test results also are restricted against use beyond the family law proceedings.

The golden rule of family law: During child custody cases, the court must always act in the best interest of the child or children in a case. If one parent has any documented history of substance abuse or criminal activity related to illegal drugs or alcohol, the court may require drug and alcohol testing.

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. If official documentation of your spouse’s substance abuse problems is not available, you may file a declaration to the court concerning the substance abuse. If any third-party witnesses – friends, neighbors, teachers, extended family members, or even strangers – have any knowledge of your spouse’s drug or alcohol abuse, be sure to submit their testimony with your declaration.

What to Know About Requesting Drug Tests

If you are thinking about making a motion for your divorcing spouse to undergo drug testing during your child custody case, it’s important to remember that the court will likely order that you undergo testing, as well. The court will probably decree that both spouses must share the costs of testing.

If you submitted a declaration to the court about your spouse’s drug or alcohol abuse, you must be sure to include every known incident of such behavior that you or others have personally witnessed. You cannot cite the apparent presence of substance abuse as evidence, so changes in your spouse’s behavior or the appearance of drug use do not count as actual evidence.

Remember, the court must act in your child’s best interest. Although drug or alcohol use on its own is not enough cause to restrict custody, judges typically find any substance use – even casual, occasional use – to be detrimental to the well-being of the children. Substance abuse often leads to bad parenting decisions or worse, so the court must acknowledge this in its ruling.

Speak with a divorce attorney as soon as possible if you are unsure whether you have justifiable grounds to seek a drug or alcohol test for your divorcing spouse. It is best to connect with an attorney as soon as you and your spouse decide to divorce. A qualified family law attorney will 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.