Drug testing in family court
There are a number of reasons why a court will order a drug test as part of a family court proceeding. When there are disputes over who gets custody, or if one parent believes that the other parent is not fit to care for the child, it stands to reason that the court would enact some form of parental testing to ensure that a proper environment is present and that the child is not exposed to illegal activity. Another possibility is legal enforcement, and this includes both incapacity and dependency. If an individual has an addiction or ongoing health conditions, allowing the person access to their children might pose a direct threat to the safety of that child. Refusal of drug testing could indicate complicity in the act of drug use, and legal enforcement often involves taking an active role in removing a child from any potential area of danger, whether or not drugs are present . If one parent successfully convinces a judge that the child would be better off removed from the other parent following an original ruling, the judge may attempt to determine the truth behind the claims being made by mandating drug testing. If an individual has ongoing issues with drugs or alcohol, he or she can refuse to submit to a urinalysis or other forms of drug testing. There are certain circumstances under which this can actually indicate an unwillingness to face the truth in an attempt to hide a problem. Should the judge believe that this is indeed the case, the judge may elect to remove the child from the custody of that parent. If a court ordered the individual to provide the drug test, he or she must comply. Sanctions for noncompliance can result in fines and even loss of custody as mentioned above.
Legal considerations on refusing a drug test
Refusing a Drug Test in Family Court: What You Need to Know
Drug tests are sometimes administered as part of family court proceedings. The results of a drug test could impact your legal situation—especially if you are seeking custody of a minor child. As such, it is important to know exactly what rights you have where drug testing is concerned.
Can you legally refuse a drug test? Your rights regarding drug testing could depend on the county or state where you live. In some areas, you may be permitted to refuse a drug test, but this does not mean the court will not impose certain legal consequences for your refusal (or attempt to coerce you into taking a test again).
In extreme cases, a parent could try to legally prevent a child from taking a drug test, but again, the court has the authority to override the wishes of that parent—and potentially impose penalties for refusal to comply.
Where paternity is concerned, courts may sometimes choose to administer a drug test as part of paternity testing. Again, the court must show you are the father in order to impose child support payments.
Child custody cases may sometimes involve the court ordering psychological evaluations. When this happens, the evaluator and their staff are required to maintain confidentiality and protect sensitive personal records. However, the court will maintain copies for their own records.
In some special situations, the court may choose to conduct a psychological evaluation to assess a parent’s disability (mental or physical) or to analyze any other factors that could impact the child’s best interests. If the court believes the parent lacks sufficient ability to care for the child, they will be able to legally restrict or terminate the parent’s rights to custody or visitation.
Parents who have been accused of substance abuse may also be ordered to undergo drug testing. Although drug tests can sometimes be inaccurate—they can have a powerful influence on the outcome of a custody or divorce case and are rightfully taken very seriously by the court.
Common drug test types The court may order a number of different kinds of drug tests. Among them:
The best way to avoid being forced to take a drug test is to abstain from using drugs and alcohol in the first place. However, if you take a prescription medication, ask your doctor beforehand if it could cause you to fail a drug test. In these cases, it may even be necessary to work with your lawyer and the other party to determine ahead of time whether the drug test would be valid.
A refusal to take a drug test could result in the court’s assumption that you are attempting to hide the use of an illegal substance—and could therefore carry very serious legal consequences. For example, if the court is siding with the other parent and a drug test shows you using illegal substances, it may only serve to further that parent’s case. If you’re seeking primary custody, the results could prevent you from seeing your children.
Your attorney can help you understand the specific consequences of a drug test refusal in your state.
Repercussions of noncompliance
When one party in a family court matter refuses to submit to a drug test, the feasible negative income consequences might very well extend beyond what has been considered. Mainly, an inverse inference will be drawn in that the more responsible party was in fact using drugs when the other refused to submit to the test. There are numerous court cases throughout the State where a party refusing to submit to a drug test was assessed the negative inference for custody purposes. Refusing to submit to a urine screening may also be grounds for the judge to draw a negative inference upon the issue of parental rights and responsibilities. Overall, the failure to submit to a requested screen may be taken by the court as a bad faith effort to not submit to an agreed upon protocol to ensure the safe care of the children.
Further, it is important to recognize that while one party may refuse a requested screening, this does not prevent the court from ordering the remaining party to submit to a drug test along with another and/or third party.
As a last point, a refusal to submit to a test incentivizes further requests on the other and may rapidly build into more intrusive procedures like hair screening, blood screening and psychological examinations. The bottom line is that a refusal to submit to a drug test sends a message that you have something to hide. At the end of the day, if there is nothing to hide, there should be no objection to any proposed form of testing.
Consult an attorney and options
The legal advice should be sought if a party is considering refusing to take a drug test. However, a party refusing to take a drug test without justification will likely have a much more difficult time if they appear before a judge. To refuse a drug test sounds even worse than a positive drug test if you appear before a judge and they are concerned about your substance abuse. If you have to appear before a judge because you do not get along outside of court , the judge is likely to look at you very unfavorably if you refuse to take a drug test. An attorney can help negotiate possible terms with the opposing party or advise you on how to best prove your parent fitness without a drug test.
Variations between states on drug testing
The policies and procedures surrounding drug testing in family court matters can vary by state. Some states have more permissive rules allowing for on-the-spot drug tests, while other states have more structured procedures in place to address drug testing in the family court context.
In California, the only statute that directly addresses substance abuse is Family Code §3041.5, which states that "[s]ubstance abuse treatment, counseling, and rehabilitation services may include supervised visitation services with trained monitors." While not directly on point, this is the only statute directly concerning substance abuse and children. In a California case again dealing with child custody issues, while not strictly drug testing, the Court of Appeal authorized a social worker to employ "spit tests" on both parties to the proceedings. (In re Valerie A. 1996) The spit tests detected coke use by the social worker’s spouse and after he was ordered to leave the home, his sperm count improved and the parties reconciled. These tests were deemed acceptable, the court held, despite the lack of legislative or regulatory authority to govern the employment of such tests and despite the invasive nature of the tests.
Michigan does not have any statutes specifically addressing drug testing. Instead, Michigan uses the Uniform Child Custody Jurisdiction and Enforcement Act, which permits Michigan courts to order drug testing if a court in another state has ordered drug testing. Michigan appellate courts have held that a trial court could order random, alcohol testing, but only with notice to the parties and opportunity to be heard. (Kaeb v. Kaeb).
Pennsylvania appears to have a bifurcated approach. Title 23 – Domestic Relations establishes that a "court may order a substance abuse evaluation at the cost of the parties." §6107. This statute though is again directed towards an appropriate basis for valuation of a marital nuclear business asset. For example, a trial court had ordered an alcoholic to get treatment after he refused a Breathalyzer and observed him to be drunk. On appeal, the court vacated the order that required him to participate in alcohol treatment, based on the statutory language that the trial court could only require those to undergo treatment "with the consent of the party," and the husband had never consented (Kilroy v. Kilroy). Again though, this case appears directed toward whether the trial court had properly valued the business marital asset (which was comprised in part by the husband’s impaired capacity).
New York again employs a similar bifurcated approach. N.Y. DRPLC §255-a provides for a more general approach, in which the court can appoint or require parties to engage in an evaluation for substance abuse, but shall not have the authority to require "the party to make a disposition of his private affairs contrary to his best interests or to the best interests of the children involved in the proceeding." New York has also addressed the issue of drug testing, in a case where the Father was ordered to submit to blood testing to ascertain alcohol and drug levels in violation of his probationary terms. (Kennedy Statewide Narcotic Enforcement Team v. Superior Court).
Strategies when faced with a drug test
If the court orders you to take a drug test, or if you want to voluntarily take a drug test for any reason, you should be prepared for the procedure. First of all, you should know what type of test will be performed, the procedure and the reliability of the test itself. A urine test is the most common type of drug test. This can be done in many different ways. Usually, the test itself will be administered by a representative of the company administering the drug test. The purpose of the representative being present is to make sure the test is administered properly and that no foul play can be used to manipulate the results. The representative will typically accompany you to a bathroom, or, in some cases, a tub. The representative will then wait outside the bathroom while you urinate into the cup provided for the test. You cannot flush the toilet , and you are often forbidden from washing your hands during the procedure. After the test is taken, the results are sent to the lab, and those results are sent to the company who ordered the test (or the court if the test was ordered as part of a court proceeding).
The other most common type of drug test is a hair follicle drug test. When this test is ordered, a sample of your hair will be taken to be tested. Typically, a representative will take a sample of hair from the back of your head about the thickness of a pencil.
One of the key determinations that the court has to make is whether you used drugs before your court appearance or not. If you are ordered to submit to drug testing, or if you plan on submitting to drug testing on your own, make sure that you are compliant with any and all court orders regarding drug testing.