Court Ordered Drug Testing in Divorce Cases

Drugs and alcohol play a large role in many custody fights. Sometimes they involve DUI’s and sometimes they involve casual, social drinking.  Assuming that we are not dealing with the issue of drug or alcohol abuse, custody orders are commonly drafted to permit a parent to drink so long as the parent’s ability to care for the minor children at any time such party is responsible for the health and safety of the minor children is not substantially impaired.
A different issue arises when it concerns the continual or habitual use of alcohol or illegal use of controlled substances.  Judges are in fact required, in determining a child’s best interest, to consider either parent’s habitual or continual illegal use of controlled substances or continual abuse of alcohol.  Does that mean that a court can order a parent to undergo drug testing?
A court can order a parent to undergo drug testing in limited circumstances.  Note that there is a big difference between a court strongly suggesting that a party volunteer to undergo testing and requiring the party to undergo the testing by court order.  Before a court can order a parent to undergo testing, there must first be a finding made by the Judge that there is the “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent.
Once the finding has been made and the parent is ordered to undergo testing, the test results cannot be used for any purpose other than to assist a court adjudicating custody or visitation in determining the child’s best interests and the content of the custody/visitation order or judgment.  And, a parent who gets tested has the right to a hearing, on request, to challenge a positive test result.  Even if the testing is challenged and the finding is upheld, a positive test result “shall not” itself constitute grounds for an adverse custody decision.
For questions regarding your family law or business law needs, feel free to call the Law Offices of Richard A. Marcus at 661-257-8877.