How to Request a Drug Test in Your Child Custody Case
Requesting a drug test can be a particularly useful piece of ammunition in a child custody case, especially if you are seeking full, rather than joint custody. If you know that your former partner is using drugs that could put your child in harm’s way, requesting a drug test can ensure your child stays in safe hands.
Before requesting a drug test, make sure you have no doubts that your spouse has a substance abuse problem that could harm your child. Most of the time, the court will not administer a drug test based solely on the accuser’s attestations.
The court will likely need to see solid evidence that your partner is abusing drugs or alcohol. Drug tests are sometimes granted based on argument alone, but you are likely to need a smoking gun like a past drug-related conviction or witness testimonies to convince the court.
Should I Request a Drug Test?
Ordering a drug test can not only help you achieve physical custody of your child, but also legal custody, meaning you will be the sole authority in decisions about the child’s education, health, and general upbringing. However, requesting a drug test can be risky. You may be asked to take a drug test as well, especially if you and your spouse still live together.
Drug tests can be expensive, and the court might require you to cover the cost of the test. You should only request a drug test during a custody hearing if you are worried about your child being brought up in an unsafe environment. If you have reservations about whether your spouse is abusing drugs, it might be better to err on the side of caution and avoid a drug test.
Refrain from seeking a drug test solely out of bitterness or competition. Courts do not take false accusations lightly and making one could severely hinder your case and turn the judges against you.
If you are wary about whether you can or should request a drug test, consulting, your lawyer can help. An attorney will know based on the evidence you provide on whether or not a drug test is feasible or favorable.
Consider Your Child’s Best Interests
Emotions often run high during divorce hearings, and it is easy for parents to put their own feelings before their child’s in a heated debate. If you find yourself seeking a drug test out of animosity for your spouse and not your child’s best interest, it is unlikely to yield a good result and might be a waste of time and money.
When possible, courts generally consult the child about which parent they feel most comfortable with and with whom they wish to live. If your spouse is not dangerous and your child wishes to remain in contact with them, you might want to reconsider why you are seeking a drug test in the first place.
How to Proceed with Requesting a Drug Test
If you decide to proceed with a drug test, your attorney will file a motion requesting one from the court. Once the motion is filed, both parents will have a chance to argue their case during a hearing to determine whether a drug test is necessary.
The court may order both parents to take a drug test if they feel it will be beneficial. Depending on the court, the drug test may analyze urine, blood, or hair.
Another way to proceed is to inform the judge of any patterns of substance abuse. However, you will likely have to provide proof in the form of incriminating photographs or text messages.
It is not uncommon for parents to falsely accuse their spouse of alcohol or drug abuse. For this reason, you will need solid evidence that your partner is abusing drugs or alcohol to request a drug test.
In California, courts generally push for joint custody to keep the child in contact with both parents. For a drug test to be useful, you will have to prove that your partner’s drug use will be detrimental to your child.
Courts often require a preponderance of the evidence to move forward with a drug test. The evidence you provide will have to point unequivocally in your favor. Useful evidence can include:
- Past drug-related offenses
- Physical evidence of a history of drug use
- Medical Records
- Witness Testimonies
- Testimonies or affidavits from social workers
If your partner is using a legal substance, requesting a drug test can be even trickier. You will have to obtain documented evidence that substance abuse is occurring and poses a threat to your child.
Things to Consider
Even if a drug test against your spouse comes back positive, it does not automatically preclude them from obtaining partial custody. The positive result will be weighed in with all other determining factors from the hearing, such as the child’s age and preference, and each parent’s financial situation.
A positive drug test is not necessarily a final blow. According to California law, parents can challenge the positive result and can argue that the test was inaccurate or that supplementary testing is required. If you are on the fence about requesting a drug test, consult your attorney first. It might be best to avoid the hassle.