How to File a Motion for Drug Testing Against a Drug Addicted Parent

The question is how do you file a motion for drug testing in a child custody case?

The answer is you file a motion for drug testing through a request for order.

A request for order for a drug testing motion at a minimum requires the following documents:

1. FL - 300.
   
2. A declaration based on personal knowledge and admissible evidence that sets forth the facts in support of your drug testing request.
   

A motion for drug testing requires you show the other parent has a habitual or continual illegal use of controlled substances, or the habitual or continual abuse of prescribed controlled substances.

What exhibits should you have that support your motion for drug testing?

Exhibit usually include photographs, text messages, emails or other electronic written communication, medical records, records of criminal proceedings related to drug abuse, and more.

Record of attendance at a rehab facility is also helpful in this regard.

Some of the above information may implicate privacy rights.

You should consult with an experienced family attorney to determine what it takes to admit such records into evidence supporting your drug testing motion.

Exhibits are not mandatory to support a motion for drug testing. Sometimes, an addict may be functional enough to avoid records of their drug abuse. The law does not mandate exhibits.

Sometimes, testimony may be enough depending on the nature, extent, and details of the drug abuse.

Suppose your motion is not limited to only drug testing, and it includes a request for custody and parenting time. In that case, there will be additional forms or a more comprehensive declaration required.

What if the need for the drug testing motion is an emergency?

Courts usually do not deal with such issues on an emergency application, also called an ex-parte application.

However, suppose there is a potential threat of imminent harm to a child. In that case, it is appropriate to file an ex parte application and request emergency orders.

You should not delay filing it if a child is potentially in danger due to the parent who has the drug addiction issue.

What type and duration of drug testing should you request?

That depends on the fact pattern. If the drug abuse is severe, the addicted parent must have minimal time to report for testing (typically 4 hours or less).

There should also be a provision stating a failure to test and a diluted test count as a positive test.

In severe cases, it also makes sense for there to be a total suspension of parenting time for the addicted parent if they test positive until the court can determine what it should order due to the positive test.

The above only scratches the surface on the types of requests that should accompany a drug testing motion.

Experienced family law attorneys can explain the nature and extent of such requests.

We also encourage you to read our guide on divorcing an addict.

What happens after you file the motion for drug testing?

The court will set a hearing date on your motion. That hearing date may be one to three months away in most California courts, depending on the court and the judge.

We have seen motions set even further than three months.

Once you receive the paperwork with the hearing date, you must serve the other parent with your motion.

The method of service depends on where the case is at that time. A family law attorney can explain whether the drug testing motion requires personal service, service by mail, or electronic service.

Does the other parent get to respond to the motion for drug testing?

Yes, the other parent has an opportunity to file and serve their response. Their response typically includes form FL - 320, their declaration, potentially declaration from witnesses, and exhibits.

The other parent rarely admits to ongoing drug abuse, so you should be prepared for a contested hearing.

What happens at the hearing on the drug testing motion?

At the hearing, the judge hears from the parties, witnesses and determines what evidence is admissible. Suppose the judge believes the other parent does continually or habitually abuse drugs. In that case, the judge has the discretion to order drug testing.

The nature and extent of the testing will depend on the severity of the abuse.

Why is it important to file a motion for drug testing?

It is common for parents who abuse drugs to deny the abuse or claim they have achieved sobriety when they have not.

If you have evidence the other parent is abusing drugs, regular and random drug testing is vital for the minor children's safety.

At a minimum, this will send the message to the parent addicted to drugs they can be tested at any time.

That type of deterrent, with well-written orders, can keep the parent from abusing drugs, especially during their custodial time.

And if they do, hopefully, the random testing and other accompanying orders that limit custody time (ranging from minimal overnights to no overnights or potentially professional supervised visits, all depending on the case) will keep the child or children safe.

Do you have a child custody case that may require a drug testing motion?

If so, contact our experienced family law firm for help. We offer an affordable initial strategy session to determine whether and how we can help you.

If we can help you, we will provide you with a reasonable quote to get started on your case. We handle cases in Southern California and currently have offices in Los Angeles, Orange County, and San Diego.