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When Are Drug Tests Used in a Child Custody Case?

Posted by Furman & Zavatsky | Sep 11, 2018

The stress of a child custody case is enormous. Even the most harmonious and successful marriages can encounter difficulty when the added pressure of raising a healthy child is factored into the equation. Unfortunately, not all marriages succeed, and when a marriage is legally terminated in Los Angeles County, a child custody case is often necessary to decide custody and visitation rights.

Drug Testing in Child Custody Cases

Even when both parties in a divorce or legal separation want what is best for the children involved, it can be a very contentious time for everyone. It's no secret that drug and alcohol abuse is a tragic issue among many parents and will sometimes play a major role in decisions being made in a divorce settlement relating to child custody.

If you are seeking a divorce and believe your spouse has issues with substance or alcohol abuse, you must address this issue before your children are placed in a dangerous environment. The Los Angeles County family law courts will not order drug and alcohol testing under normal circumstances during the divorce process.

Typically, one spouse will have to make a request to the court that the other spouse undergoes drug testing. However, it's important to note that the judge will not grant this type of request without some type of reasonable evidence that the spouse has a drug or alcohol problem. If one spouse can show the other has a history of unlawful drug or alcohol-related criminal history, this would be considered a preponderance of the evidence and would meet the burden of proof for drug testing.

The Los Angeles County family law courts are interested in maintaining relationships between parents and any children involved in a divorce. There is demonstrated evidence that such relationships are in the best interests of children.

However, this is not always realistic, especially when one or both spouses are engaged in behavior that is detrimental to their children or, in extreme cases, behavior that is illegal. It is not uncommon for one or both parties in a divorce or legal separation to suspect or accuse the other party of such behavior, whether in response to real fears for the child or as a tactic meant to undermine their spouse.

In the end, the court wants to protect the best interests of the child, and if the child's interests are at risk, then it is the responsibility of both the court and the adults involved to speak up to protect the health and safety of those children.

The bottom line is that it is not in the best interests of the child to have contact with a parental or authority figure who is abusing alcohol, drugs, or other illegal substances. This is why Los Angeles County divorce courts have the power to order mandatory drug testing in child custody cases.

If you are planning a divorce and believe your spouse has an issue with drug or alcohol abuse that could endanger your children, you need to contact the Los Angeles divorce attorneys at Furman & Zavatsky LLP. Our lawyers must closely review the circumstances to determine your best legal options for child custody moving forward.

When Can a Judge Order Drug Testing in a Child Custody Case?

As stated above, in order for a judge to order mandatory drug testing in the course of a child custody case, there must be evidence that there is a habitual, frequent, and/or continual use of illegal drugs by one (or both) parties involved in the child custody case.

In many cases, even though alcohol is not an illegal drug, if the court deems that its use by a party to the child custody case is extreme and dangerous to a child, testing for alcohol use can also be ordered. During the course of a child custody case, simply accusing one party of excessive, habitual or continual use of illegal drugs or alcohol is not enough to warrant court-ordered drug testing. The other party (and their legal counsel) must be able to prove that the illegal drug or alcohol abuse is excessive and/or dangerous before a judge will mandate drug testing.

In order to substantiate a claim that a parent is engaged in excessive or habitual drug or alcohol abuse, the courts will ask for evidence. The following types of evidence may be helpful in your case:

  • Evidence of criminal drug-related activity in the past
  • A history of drug use that has been well-documented in some way
  • Testimony from a witness describing excessive or habitual illegal drug use or alcohol abuse
  • Testimony or affidavits from a social worker
  • Medical records that reveal a tendency for excessive or habitual illegal drug use or alcohol abuse

What Are the Ramifications of Drug Testing in a Child Custody Case?

Drug testing is serious, but it is important for anyone involved in a child custody case to know that the California code mandates that the results of any such drug testing will not, independent of other factors, adversely affect the outcome of their child custody or visitation case. This means that a judge will factor in other variables and testimony even in the event of a positive drug test.

The court might order drug or alcohol testing using urine samples but can't order using hair follicle testing. It's critical to note that even in situations where there was a positive result on a drug or alcohol test, it doesn't automatically mean the “dirty” parent will have it used against them in determining child custody. Additionally, the results of a drug test are restricted from being used outside the divorce and family law court proceedings.

As we have extensively discussed throughout other blogs, there is one primary goal in Los Angeles County divorce and family law court decisions on child custody. The court will ALWAYS act in what they believe is in the best interest of the child – period and end of discussion.

Suppose one spouse can provide documentation of a history of substance abuse or criminal activity involving illegal drugs or alcohol. In that case, it's highly likely the court will order drug and alcohol testing. In some cases, the judge might ask for an independent source to confirm drug and alcohol abuse.

This might include documentation from police or Los Angeles County probation or social welfare agencies. In situations where you cannot provide documentation of your spouse's alleged abuse issues, you have the option to file a declaration to the court concerning the alcohol or drug abuse. This means you could submit testimony from family members, friends, or even neighbors who might know about your spouse's problem with drug or alcohol abuse.

Contact our Los Angeles Divorce Attorneys

Divorces are complicated and emotionally draining enough as it is. Adding drug testing to the mix makes matters even more delicate and strained. If you're going through a divorce in Los Angeles, hiring legal counsel is advisable in order to adequately address the myriad legal issues associated with a child custody case that might require court-mandated drug testing.

The Los Angeles divorce and family law attorneys at Furman & Zavatsky are skilled at dealing with the complexities of child custody cases and well-versed in handling the ins and outs of court-ordered drug testing. To discuss the details of your case, call us at 818-528-3471.

About the Author

Call a Los Angeles Divorce Lawyer

Family law disputes have the potential to have a significant impact on your quality of life and overall happiness. As a result, it is critical for you to protect your rights to the fullest extent possible when involved in a dispute related to family law. The lawyers of Furman & Zavatsky have the skill and experience to resolve your case as favorably as possible and provide compassionate and understanding legal counsel and representation. We also offer flat fee legal services for divorce and family law issues.

To schedule a free consultation with one of our Los Angeles divorce attorneys, call our office today at 818-528-3471. Read our blog on how to prepare for your first meeting with a divorce lawyer.

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