“I believe the Mother of my child may be using drugs. I found a pipe. She’s lost so much weight. I’m just not sure my child is safe and I have no proof that the Mom is using drugs.” Many times, suspected drug or alcohol abuse is an issue in a child custody case.
It is common for a party during a custody case to ask the Judge to order random drug and alcohol testing. Parents want to ensure that their child or children will be safe with the other parent. This is especially true if a parent has witnessed the other parent using drugs or consuming alcohol on a regular basis or has reason to suspect drug abuse. However, parents will sometimes make these claims in an attempt to gain full parenting time or sole legal decision making of the child when there is no actual basis for the claim! So what does the court do when a party is alleging substance or alcohol abuse?
Courts have taken different positions on this issue. Most often if there are serious concerns that a parent is using drugs or abusing alcohol, the concerned parent will ask for temporary orders from the court. This will provide the court with notice that there are concerns. Most often during those temporary orders hearings, the concerned parent will need to provide evidence or strong testimony that the other parent needs drug and alcohol testing.
Usually, the court will consider the evidence and testimony and order that the other party take random drug and alcohol testing on a continuous basis. Most often the court will order the party to take a test through TASC testing the day the court order is released. This provides the other party with no notice to ensure they have not tried to come clean before the test.
The test will usually be a urine sample. However, courts may order a party to complete a hair follicle test. The urine sample provides results based on up to three days of drug or alcohol use. The hair follicle test can provide results from up to 90 days. Thus, the judge may want to consider what the person was doing three months before the proceeding even started.
Now, what happens if the other party’s hair follicle test returns a positive result for a drug? This depends on the judge. In some cases, once the judge receives the results, he or she will immediately enter a temporary order for supervised parenting time. Other judges will prefer that the concerned party ask for an emergency order, which there will then be a subsequent hearing on the test results.
If you attend an emergency order hearing there are a number of things that may happen. The judge may determine that it is in the child’s best interests for the parent who tested positive to only have supervised parenting time, until proving he or she has been clean for a certain period of time. Other judges may not require any supervised parenting time. Most likely, that will happen if the judge sees recent urine test results, which indicate no positive results for any drugs. Keep in mind, though, that the judge will likely order for the party to continue testing. If a positive test shows up again, the judge may order supervised parenting time.
There are a number of outcomes that can occur during drug testing. Just be prepared that if you are ordered to take drug or alcohol testing that you are clean. One bad test result could mean a loss in parenting time and legal decision making.
