In this article, our child custody lawyers discuss the sensitive and sometimes difficult topic of drug and alcohol testing in child custody cases.
This article assumes that the parents do not agree to testing and one of them seeks testing against the other due to allegations of drug use or alcohol abuse. Drug use, as we refer to it in this article, includes the improper use of prescribed medication.
Any time the Orange County family court makes orders regarding custody and visitation, the court must take the child’s best interest into consideration.
It is not in the child’s best interest to have a custodial parent or either parent with frequent and regular visitation who abuses alcohol or uses drugs. For that reason, the family court has the power to order drug and alcohol testing so long as the court has credible and independent corroboration the accused parent is abusing alcohol or using drugs.
Experienced lawyers gather this evidence before the hearing and present it to the court through documents and testimony.
This independent cooperation can come in different forms. The most common are the criminal record of the parent been accused, medical reports that confirm the alcohol abuse or drug use, Orange County child protective services or other social welfare reports and independent witnesses who can testify to the drug abuse or alcohol abuse.
The family court must make a finding and there must be evidence that there is habitual, frequent or continual illegal use of alcohol or drugs by the parent for it to have the power to make a court order for testing. This is one fact many child custody lawyers forget. It is not enough to show the use of controlled substances. The parent and his or her lawyer must also show its regularity. If a parent has been convicted of illegal use or possession of a controlled substance within the last five years, such evidence can be compelling in favor of testing.
The court cannot order intrusive testing and is required to pick the least intrusive testing method available. The most common testing is urinalysis although such testing can be ineffective unless it is random for the use of alcohol. While lawyers often argue for hair follicle testing, family courts are not yet able to order such a test. The parents however can agree to it.
If a parent tests positive, the parent does have a right to a hearing to contest the positive test. As a practical matter, so long as the testing is done by a licensed facility, a positive drug test or alcohol test typically means the court will limit or otherwise modify custody and visitation to protect the minor child, even if it is for a temporary time.
Finally, in our experience, the court’s orders regarding drug and alcohol testing should not be perpetual (unmodifiable). We believe that would violate a parent’s due process rights. Because the court must use the least intrusive methods, courts typically assign drug and alcohol abuse cases to forensic experts to conduct an evaluation and examination of the parent to determine the seriousness of the abuse as well as to obtain recommendations the court can take in consideration. The family court will lend great credibility to such reports because such forensic experts, who are sometimes medical doctors and often PhD’s, are more qualified to determine the nature and extent of substance abuse than a judge. The best child custody lawyers know who these experts are and rely on them in such cases.
If you have a case that involves allegations of drug or alcohol abuse, whether you’re the one making the accusation or being accused, you owe it to yourself to hire our experienced and knowledgeable Orange County child custody lawyers.
Our lawyers are exactly that. We have a specific procedure that we undertake in such cases to determine the merits of the allegations. A thorough investigation into the allegations, including the gathering of corroborating evidence in support of the allegations or against them, is critical to success. It is not uncommon for drug and alcohol cases to spin out of control and drag through the court process for far too long, to the detriment of both parents and the children. Our knowledgeable attorneys can help you avoid that.
We are available for a consultation and ready to help you.