Can the Family Court Make You Take a Drug Test?

by | Nov 8, 2021 | Child Custody & Visitation

A common scenario during child custody disputes involves one parent accusing the other of abusing illegal substances, in an effort to gain more time with the child. These accusations can be frivolous and untrue, but they can also be valid. The court has an interest in ensuring children are not ordered to spend time with a parent in a situation that is harmful or at least not within their best interests. That sometimes includes ordering drug testing for a parent.

When Can You Get Drug Tested?
According to Family Code section 3041.5, the court can order drug testing of a person seeking custody or visitation, if there is a preponderance of evidence that the person uses illegal controlled substances or alcohol continually, frequently, or habitually. The court may require the accusing party to provide corroboration of the allegation, including reports from law enforcement, social welfare agencies, medical providers, or courts. Additionally, the courts have the power to continue drug testing indefinitely as a condition of further visitation. Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1172-1173.

Though there is a relatively low standard for the court to order drug testing, there are some limits. The test must be the least intrusive method of doing so, in accordance with the procedures and standards established by the Health and Human Services drug testing of federal employees. This usually constitutes a urine test, instead of hair follicle testing, even though the results tend to be more accurate. The parties may stipulate to a more intrusive method of testing.

Does A Drug Test Mean I Won’t Get Custody?
So, what do you do if the court orders that you submit to drug testing? Don’t panic – it does not mean that you can never gain custody of your child. The Family Code specifies that a positive test result does not, on its own, constitute grounds for an adverse custody decision. Instead, there is a rebuttable presumption against awarding sole or joint custody to parents who have problems with substance abuse. Additionally, the party being drug tested has a right to a hearing (if requested) to challenge a positive test result. The Family Code provides that when the court makes an order for sole or joint custody after considering drug use allegations, the court must state its reasoning in writing or on the record.

Why A Lawyer Can Help You
Fighting a child custody battle is high-pressure and the issues can be complex and daunting if the parties do not know their rights or options. The attorneys at Butler Law, PC are well-versed in child custody and visitation cases. Contact our office for more information on how you our attorneys can help you with your custody case today.