What Is The Process For Having The Other Parent Tested For Drugs In A Custody Case?

During a divorce or custody case, a party can file a motion for temporary orders that include substance abuse testing if they have a good faith basis for believing that the other party has a substance abuse problem. Sometimes the court will entertain oral motions at a hearing, even if a written motion was not filed beforehand. For example, at a protective order hearing, oral motions are fairly common. After the decree has been entered, however, a temporary restraining order or a petition to modify combined with a motion for temporary orders would be necessary in order to make that request.

Can I Request To Have Other People In My Ex’s Home Tested For Drugs?

Other people who live in the home of a parent who is suspected of substance abuse would only be required to undergo testing if they were to willingly subject themselves to the jurisdiction of the court and agree to be bound by court orders. However, if a step-parent or other person in the home has a clear history of substance abuse, or there is recent evidence of substance abuse by a step-parent, the requesting party may ask the Court to order that person’s contact with the child be professionally supervised or cease, unless and until that person is willing to submit themselves to the jurisdiction of the court, agree to be bound by court orders, consent to substance abuse testing, and adhere to restrictions on consumption of substances when in the presence of the child.

How Do You Structure An Optimal Drug And Alcohol Testing Agreement Between Parents?

The way in which an optimal drug and alcohol testing agreement will be structured between parents will depend on the type of substances used, the frequency with which they are used, and the severity of use. Generally speaking, a substance abuse test should occur, within a certain number of hours of the request, and a predetermined facility or group of facilities should conduct the test. To prevent forgery or manipulation of the results, the test results should be sent directly to the requesting party’s attorney and not pass through the hands of the subject. The testing process should also be “observed” so as to ensure that no one else’s urine, hair, blood, or saliva sample is used to beat the test. There should be a paper trail documenting all of the foregoing drug and alcohol testing.

Drug and Alcohol testing is continually advancing, so it’s important to remain educated on the types of tests available, as well as their advantages and disadvantages. For example, for many years (and sometimes this is still the case), THC from marijuana would not show up very well in hair tests. Some facilities claim to have advanced hair testing methods that catch THC more successfully than their predecessors. Due to the rate at which the body metabolizes alcohol, alcohol testing has historically been especially problematic. For this reason, blood tests have been preferred, but they are very invasive. Saliva, sweat, and breath testing is becoming increasingly advanced, but one should still be aware of the limitations.

Will The Court Always Grant A Request For Drug And Alcohol Testing?

The court will not always grant a request for drug and alcohol testing. If a party has no good faith basis for believing that the other side has a substance abuse problem, and they are simply making the request “just in case,” then the court will likely deny that request. However, if there is a good faith basis for believing that the other side currently has a substance abuse problem or has had one in the past, then the court will generally grant the request, provided the cost of the test is covered by the requesting party.

What Can I Do If I Test Positive For Drugs In A Custody Case?

If a party tests positive for a drug during the course of a custody case, they may have to make significant rehabilitative efforts to address the court’s concerns. Steps to satisfy such concerns might involve voluntary periodic drug testing, voluntary engagement in a substance abuse evaluation and compliance with treatment recommendations resulting from the evaluation, willingness to provide substance abuse treatment session notes and records from the provider to the court or to the other side explaining how well they are doing in treatment, voluntary attendance at AA or NA meetings where attendance can be verified, and/or consent to an agreement which requires supervised visitation with the child for a period of time. Although there are other ways for a person who is struggling with substance abuse to rehabilitate themselves, these are among the most common.

For more information on Process For Drug Testing In A Divorce, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children