I have a son from a previous relationship that me and his mother share 50% custody of. about 1 year and a half ago I recieved custody becasue of issues that she waa going through one being she was caught driving while under the influence of a controled substance. She has then completed a class ordered by the court , went to massage theraphy school.. and seemed to get her life on the right track, which is why I agredd to a 50% custody with her. Lately she has been acting the same way she was back then when she was using drugs and she has lost alot of weight in a matter of weeks. Her bahvior is also that of a drugee again. Can I go to court and ask a judge to order her to submitt to a drug test and can it be a hgair follicle test becasue the drugs she uses are out of her system in 72 hours. Is there a law I can use that since she has been convicted of drug use in the past, would help me have the court rule in my favor? Thanks
Family Law Attorney
The best way of achieving your goal is to file a motion for change of custody asking for sole physical custody of the child. In your declaration you need to specify that the reason you are requesting the change is that you have seen signs of drug addiction similar to prior occurrences and this puts the child at risk. You can't say "her behavior is that of a drugee." You need to detail what you and others see that would lead the court to a conclusion that she is addicted to a controlled substance. Then when you are before a mediator in Family Court Services you can tell the mediator that mother has a prior conviction for DUI and she is acting again like she did when she was on [name of controlled substance]. You need to ask the mediator to recommend a hair follicle test to the judge, which will carry a lot more weight than a request coming from you.
You can only obtain drug testing in the context of an ongoing custody proceeding. Further, the court lacks the power to order hair follicle testing, so don''t bother asking - they can't do it. Also, to obtain a drug test you must show by a "preponderance of the evidence" that the person seeking custody or visitation uses illegal drugs or alcohol "habitually or continually (or frequently, in the case of controlled substances)," so you need to be prepared to do that. Check out Family Code section 3041.5 (which, by the way, is set to expire and automatically "go away" on January 1, 2009 so act fast.