Written by attorney Anthony S. Alpert

Requesting Drug Testing in a California Family Law Custody/Vistation Case

What if you suspect that your ex is using illegal drugs or alcohol? What can you do to protect your children? If you suspect he or she is using an illegal substance, you can request that they submit to drug testing.

In determining the child's best interest, trial courts must also consider either parent's “habitual or continual illegal use of controlled substances" or “continual abuse of alcohol." (Family Code §3011(d))

The Court will want evidence of a parent's illegal 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. But what if that is not available?

A detailed declaration from you and/or other witnesses may be submitted. When preparing the declaration, you should be as specific as possible. List why you suspect illegal drug use, each incident of suspected drug use, and what the other parties’ reaction was when you or your witnesses confronted him or her. The best witnesses are independent third parties. Did a teacher, neighbor, or complete stranger witness the drug use? If so, their declaration should be included.

After reading the declarations, the Court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances or alcohol; and may order either or both parties to pay the costs of such testing. The Family Code states that only urine testing is allowed, however I have seen mediators recommend and courts order hair follicle testing. It is also common for a court to order both parties to submit to drug testing although only one is requesting it.

If the test is positive, the party who underwent the testing has the right to a hearing, on request, to challenge a positive test result. I have yet to see a positive result successfully challenged. Also, Family Code §3041.5 states that a positive test result “shall not" itself constitute grounds for an adverse custody decision, but those who abuse illegal drugs and/or alcohol usually commit other acts of poor parenting. It is unlikely that a Court will find that even casual use of illegal drugs outside the presence of the children is not detrimental to the children.

REMEMBER: Your declaration specifically should state each and every time you or your witnesses observe the other party abusing illegal drugs and/or alcohol. Stating that the other party just “acted weird" is not enough. You should also state in your requested order when, where, how often, the manner of testing, payment arrangements, and how results will be disseminated. My practice has been to find a testing facility, ask how much urine testing costs, and be ready to pay for the first test prior to the other party testing. My requested orders also state that if a test is positive, then the other party will reimburse my client for the test within 30 days.

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