Legal battles involving children tend to be some of the most contentious and emotional issues brought before any Court in any jurisdiction. The reason why is simple: 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 done by the Court, competing parents tend to make allegations against the other trying to convince the Court that custody with the other parent is not in the children's best interests. One of the perceived most damaging allegations is that the other parent is a drug user. And almost always, the parent requests that the Court order the other parent to undergo Court ordered drug tests.
Can The Court Order Drug Tests?
Whether a Court can order a drug test or not depends on what State you live in. In California, Courts do have the authority to order a party to take a drug test. 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 includes, but is not limited to, 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.
After the Court obtains independent corroboration, the Court may order any person seeking custody or visitation to undergo 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 the either party to cover all the costs depending on the circumstances of the request and outcome of the test.
California Limitations and Qualifications
Although a California Court can order a party to submit to a drug test, the Court's authority is not unlimited as there are Constitutional safeguards that must be followed. First, there must be an evidentiary hearing and there must be 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 person seeking custody or visitation. (Cal. Fam. Code §3041.5(a).)
Should the Court order that a party seeking custody or visitation must undergo testing, the testing must meet Federal Constitutional standards. Under Federal Law, the court must order the "least intrusive" method of testing, which in California means that testing can only be done by testing the party's urine. 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 and a positive test cannot be the sole basis for denying custody or visitation.
Conclusion
Custody disputes can get ugly and for many people it brings out the worst they have inside themselves. Making allegations about drug use is serious business and there are severe consequences if the allegations are falsely made. But at least in California, there is authority for a Court to order testing. And if there truly is a problem requesting a test is appropriate, and the right thing to do to protect children.
Disclaimer
Dena Bez is a licensed California Attorney whose practice focuses on family law including divorce, custody disputes, domestic partnership issues and small business counseling.
This Article is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using the article or the information contained in the article you understand that there is no attorney client relationship between you and the publisher. Any information in the article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
