my soon to be exhusband has filed a declaration stating he heard that I use drugs, and is requesting a hair folicle test for me and my mother, is this something the judge or mediatior can order? I dont use drugs, and I know if a test comes back dirty, then he has slipped me something. how can I argue this in court? and if we both have dirty tests will the court take our kids?
Divorce / Separation Lawyer
In determining what is in the children's best interest, the court must consider things such as the "habitual or continual use of controlled substances" or alcohol abuse by either parent. However, the judge has NO AUTHORITY whatsoever to order you to submit to drug testing simply because your ex heard that you use drugs. In my opinion, the court has no authority to order a drug test as that would be judicial over-reaching on the court's part and is a violation of your privacy rights.
The Code states that a court may consider drug/alcohol abuse when there is independent corroboration: "Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services."
I am including links below which may be of some help. Good luck.
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3 lawyers agree
Family Law Attorney
First off his statement is hearsay and TOTALLY unreliable. If you handle this right-- calmly-- wild unfounded accusations can be more of a reflection on the accuser then on you. But no the court will nor order tests on you and has NO jurisdiction over your mother.
If the two of you cannot avoid ugly battles abut fitness the means is a 730 eval. Expensive--but admissible.
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Divorce / Separation Lawyer
Because hearsay statements are not considered permissible evidence in court, the courts cannot force you to take a drug test. Other than that, I would recommend you seek counsel with a local attorney. You don't have to retain the attorney, but I would imagine you would feel a lot more comfortable entering the court room after meeting with an attorney.