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Drug and Alcohol Testing in Child Custody Cases

Guiding You Through Difficult Times

One of the major issues dealt with in family courts regarding child custody is when one parent alleges drug abuse against the other.  When such allegations arise, it is important to know that all California family law courts have the discretion to order drug tests when a parent has a history of illegal drug use.

Specifically, when dealing with custody issues, family law courts are concerned with determining what is in the child’s best interests.  Thus, per Family Code §3011 (d), the courts will consider whether either parent has a habitual or continual illegal use of controlled substances or continual abuse of alcohol.

Before the court considers allegations of a parent’s drug or alcohol abuse, it may require independent corroboration such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services.  When the court finds the grounds appropriate, it may order a parent to be tested for either drug use or alcohol abuse.

The California Legislature has found the need to provide procedural and substantive guidelines regarding drug testing.  Family Code §3041.5 dictates the following:

a)      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 a 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.  This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance.  The court shall order the least intrusive method of testing for the illegal use of controlled substance or the habitual or continual abuse of alcohol by either or both parents, the legal custodian, person seeking guardianship, or the person seeking visitation.  If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.

Be aware that California case law dictates that hair follicle testing is not permitted in connection with custody disputes, because only urine tests are used to test federal employees.  Thus, urinalysis is all that can be ordered, no matter how much more scientifically sensitive hair or hair follicle testing might be, or how much more convenient (and sensitive) the use of a sweat patch might be.

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