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Can I get the other parent drug tested?
Posted by: Bill Edgar
May 01, 2009
Topic: Custody and Visitation
In determing the child's best interst, the court must also consider either parent's "habitual and continual illegal use of controlled substances" or "continual use of alcohol." Family Code, Section 3011(d)
Before considering allegations of a parent's drug or alcohol abuse, the court may require independent corroboration-such as 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. Under strict guidelines, the court may order any person seeking custody or visitation to undergo testing for the illegal use of controlled substances or alcohol, and may order either or both of the parties to pay the cost of such testing.
First of all, there must be judicial determination based upon the preponderance of the evidence that there is a "habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol" by the person seeking custody or visitation orders. The determination may be basedon (but is not limited to) a conviction in the past five years for illegal use or possession of a controlled substance.
Testing Method: The court must order the "least intrusive" method of testing and must conform with the standards adopted by the United States Department of Health and Human Services for drug testing of federal employees. Presently, the federal drug-testing standards only allow for urine tests, thus the court may not order a parent to submit to a hair follicle test under Family Code, Section 3041.5. However, the court may request that a person agree to submit to a hair follicle test. Even if positive, the positive test can not be the sole grounds for an adverse custody order.
If you are requesting drug test of the other parent, a detailed statement should be included in the paperwork that you file with the court. There are many pitfalls and issues that need to be addressed with an experienced attorney. Please contact our office to discuss your legal rights and options.
Please visit http://www.edgarfamilylaw.com/
