All too often where chemical dependency is alleged in a family law case, Courts will require parents to subject themselves to testing and other restrictions that are meant to keep the children safe. Increasingly, courts have seemingly decided to err on the side of caution requiring testing in situations where: (1) limited or no evidence has been provided that links the chemical use to poor parenting; (2) the parent making the allegation never expressed concern about the behavior when the family was in tact; and (3) independent evidence of chemical abuse is lacking (eg. Criminal records, police reports, child protection records).

Even more concerning is the use of hair follicle testing to determine chemical usage. In recent reports, it has been alleged that Brittany Spears shaved her head in a well publicized 2007 incident in order to avoid hair testing for drug use. According to Sam Lufti, a friend at the time, Spears was concerned the test results could be used in court by her ex-husband, Kevin Federline, as part of a custody battle. It would seem however, Ms Spears had little to worry about being a California resident. California is one of the few states have included safeguards related chemical use testing it its statutory scheme. That code specifically allows a court to order chemical testing where a parent has habitual or illegal chemical use issues based on a preponderance of the evidence. The chemical testing, however, is also limited by California statute to testing performed in conformity with the United States Department of Health and Human Services standards which only allow for testing of urine specimens. Hair follicle testing in California may only be carried out be agreement of the parties.

Minnesota, however, has no such statutory safeguards in place. The laws related to family law and custody proceedings do not set for the standard required for a court to require testing for chemical use. The laws are also silent on what types of testing is allowable or admissible or what standards must be applied to such testing. The result is often that parents are required to submit to intrusive tests that have significant limitations in the efficacy. Hair follicle testing, which is growing in popularity among family court, raises a number of significant concerns.

First, Minnesota statutes do not set out any specific burdens of proof necessary before a court can require such intrusive testing. In fact, all too often, testing is required besed solely on unsupported or conflicting allegations between two parents. The prevailing reasoning for requiring such testing falls under tehe guise of erring on teh side of caution. After all - "what can it hurt?" If the Court were to ignore the allegations, then the minor child or children may be placed in harm's way. A risk the court is not often willing to take. That reasoning is misguided and ignores the fact that chemical testing is an invasive bodily process regardless of the test. Testing of breath, blood, urine and hair samples should always require a significant level of proof before they become compulsory.

Second, compounding this problem in Minnesota, many times the power to require chemical testing is delegated to a person other than a Judge. Courts often use custody evaluators or Guardian Ad Litems delegating to those individuals the power to require that parties submit to testing as deemed appropriate. Again, this occurs without statutory standards in place to indicate wheat level of proof is necessary before such tests are required.

Third, hair follicle testing is particular intrusive. The typical hair screening test uses 1.5 inches of hair and approximately 90 to 120 strands of hair. A hair follicle is the root of the hair which is located in the lower part of the dermis. It is also connected to the arrector pili muscle. When removed it will leave a small patch without hair.

Fourth, hair follicle testing is arguably one of the most flawed testing platforms presently in use despite its growing popularity. The issues include the following:

  1. No Standardized Testing. There are also no standardized laboratory testing procedures for hair follicle drug testing. A "hit or miss" testing procedure can have "hit or miss" results which could unfairly cost a parent time with his/her child. The United States Department of Health and Human Services does not support hair follicle testing even for federal employees. Federal drug testing procedures and standards. only support urinalysis testing

  2. Time Variations: A standard hair follicle screen is susceptible to time variation. Although most tests seek results from a ninety day period, it is possible to test back up to one year.

  3. Low Concentrations. Hair follicle testing detects very low concentrations of trace elements of drugs. The testing is at least two orders of magnitude lower than urine testing. So if the hair is not absolutely clean or if there's the smallest microscopic trace of drugs left on the hair, it may cause a positive result.

  4. False Positives. False positive results may also occur when a person has taken prescription medications, certain diet pills, or f the have contaminants on hair passed from other sources such as their hands. There is also a possibility of passive exposure from being around others who are using drugs.

  5. Hair Bias. To make matters worse, contaminants cling to dark, coarse hair much more readily-making those people significantly more susceptible to a false-positive result. According to one report, people with dark hair are 10 to 50 times more likely to test positive for drug use from a hair-follicle drug test

  6. Confirmation required. Positive screen must be confirmed. The accepted, state-of-the-art method is called GC/MS, gas chromatography/mass spectrometry. Most labs don’t do this.

Additionally, the cost of hair follicle testing is prohibitive. Each test may cost $350 or more. Parties already strapped with legal fees, Guardian Ad Litem costs and other fees may suffer financially from unwarranted testing.

Perhaps the most alarming thing about hair follicle testing how a positive result may significantly impact the parent child relationship. Regularly, where there is a positive test for banned chemicals, court orders are entered that suspend parenting time with children. Even where parenting time is not suspended it may still be supervised. Supervised parenting requires additional expense. It occurs in an unnatural setting where all contact between a parent and child is observed and clinical notes made about the visit. A positive test may even lead to orders requiring expensive chemical dependency treatment and continued testing before parenting time can resume.