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Court Ordered Drug Testing in California Custody Cases

Sacramento and Placer County Family Law Attorneys Offer Advice in Drug Testing

Legal battles involving child custody tend to be some of the most contentious and emotional issues brought before any family law court. Why? Children are at stake and emotions are high.

In California, the Court examines various issues and facts to determine what custodial arrangement is in the "best interests" of the child. As part of this evaluation, competing parents often accuse each other of various negative behaviors to convince the Court that custody with the other parent is not in the child's best interests. One of the perceived most damaging allegations is that the other parent is a drug user. Almost always, the parent requests that the Court order the other parent to undergo custody drug testing.

Can The Court Order Drug Tests for Custody?

While states vary on this issue, in California, Sacramento family courts do have the authority to mandate drug testing for custody.

Pursuant to California Family Code §3011(d) the Court before considering allegations of a parent's drug or alcohol abuse may require "independent corroboration" of the allegation.

Independent corroboration may include written reports from:

  • Law Enforcement
  • Probation departments
  • Social welfare agencies
  • The Courts
  • Medical and rehabilitation facilities
  • And other drug and alcohol abuse service support agencies

After the family law Court obtains independent corroboration, it may order any person seeking child custody or visitation to undergo custody drug testing for the use of illegal controlled substances or alcohol. (Cal. Fam. Code §3041.5.) The Court has the discretion to order the parties to share the cost or order either party to cover all the costs depending on the circumstances of the request and outcome of the test.

Limitations and Qualifications of Drug Testing in California

Although a California Court can order an individual to submit to a drug test, due to Constitutional safeguards, the Court's authority is not unlimited. First there must be an evidentiary hearing with a judicial determination based on 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 person seeking custody or visitation. (Cal. Fam. Code §3041.5(a).)

Second, the family court drug testing must meet Federal Constitutional standards. Under Federal Law, the Court must order the "least intrusive" method of drug testing for custody, which in California means urine testing. Test results can only be used for the custody/visitation examination and must be kept confidential. Further, if a party receives a positive test they have the right to a hearing to challenge the test. A positive test cannot be the sole basis for denying custody or visitation. Working with the right family law lawyers, who understand custody drug testing rights, is critical to successfully gaining custody and visitation of your child or children.

False Allegations Lead to Severe Consequences

Custody disputes can get ugly, and for many it brings out their worst. Making drug use allegations is serious business and comes with severe consequences if they are falsely made. If a problem truly is present however, then requesting a drug test is appropriate and the right thing to do to protect the children.

Contact Our Placer County Family Law Attorneys to Assist in Your Custody Dispute

Call the Sacramento County family law attorneys at Bez Law Firm, P.C. at 916-643-9624 to schedule a personalized, no obligation initial consultation or complete our simple contact form and we'll call you to discuss the specifics of your family court drug testing case.