Court-Ordered Drug Testing in Child Custody Cases

There has been controversy over the years stemming from situations where a family court is faced with allegations about one parent abusing controlled substances.  Some years ago, judicial officers would routinely order the alleged abusing parent to undergo mandatory drug testing as a condition to having access to the minor children.  While many feel it is important for a Court to be able to make these types of orders, the United States Constitution under the Fourth and Fifth Amendments, restricts the family law court's orders in this regard.

In determining the child's best interest, trial courts must also consider either parent's “habitual or continual illegal use of controlled substances” (as defined in Health & Saf.C. § 11000 et seq.) or “continual abuse of alcohol.” [Fam.C. § 3011(d)]  Before considering allegations of a parent's 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. [Fam.C. § 3011(d)] Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances (as defined in Health & Saf.C. § 11000 et seq.) or alcohol; and may order either or both parties to pay the costs of such testing. [Fam.C. § 3041.5 (1/1/08 “sunset date”) (also applicable in Probate Code guardianship proceedings).]

California case law has limited the Court's authority in this area. A family court's power (by itself) to require “independent corroboration” before considering allegations of a parent's drug or alcohol abuse does not authorize the court to order drug testing. (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266–269, 100 CR2d 749, 752–754).)  In response to the California Supreme Court's concerns stated in the Wainwright case, the California legislature enacted Family Code Section 3041.5. Section 3041.5 states that "there must be a judicial determination based upon a preponderance of evidence that there is the “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” by the person seeking custody or visitation (parent, legal custodian, person seeking guardianship or person seeking visitation in a guardianship). The determination may be based on (but is not limited to) evidence of a conviction within the past five years for the illegal use or possession of a controlled substance. [Fam.C. § 3041.5(a)] 

Any party who suspects the other parent of using controlled substances in any fashion should be specific in the allegations they make in Court. Specific allegations require evidence from someone who has personal knowledge either by observation or from the alleged substance abuser's statements. That becomes tough if the alleged abuser stays silent. It becomes even more difficult when the parent making the allegation cannot share details because the parent's own observation of the drug use may implicate themselves in the use as well. Other third parties may not wish to come forward to testify under oath for the same reason. Hence, law enforcement involvement, i.e. arrest or incarceration, may be the best hope to get the evidence needed for court-ordered drug testing.

Once the test is ordered, there are further limits on the Court's authority. The court must order the “least intrusive” method of testing. Any substance abuse testing must be performed in accordance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. [Fam.C. § 3041.5(a)] Presently, the federal drug-testing standards only allow for urine tests; thus, e.g., the court may not order a parent (or other custody/visitation claimant) to submit to a hair-follicle drug test under § 3041.5. [Deborah M. v. Super.Ct. (Daryl W.) (2005) 128 CA4th 1181, 1191–1194, 27 CR3d 757, 764–766 (also noting that proposed amendments to federal standards permitting hair-follicle and other alternative testing methods have not yet been adopted).

The trouble is that urine testing is the easiest testing to fool unless it is random. Urine testing, for example, cannot detect historical drug use or determine whether the situation at issue in the custody dispute is a "one time"occurrence. The question whether the more conclusive hair follice testing will be permitted in California in situations other than when the party agrees remains unanswered.

Because of Fifth Amendment concerns, the test results may not be used for any purpose (whether criminal, civil or administrative) other than to assist a court adjudicating custody or visitation in determining the child's best interest pursuant to Fam.C. § 3011 and the content of the custody/visitation order or judgment. [Fam.C. § 3041.5 (a)

If you are involved in a custody dispute, and suspect the other parent is a habitual drug user it may be imperative to raise it with the court as soon as you can. In doing so, keep in mind the following: (1) you should provide the court with specific facts addressing the drug use, and how it affects the user in making parenting decisions. (2) remember that drug use may not preclude the parent from having access with the children prvovided there are appropriate conditions for a significant duration (Narcotics Anonymous, rehabilitation).  A failure to raise it early on may hurt your crediblity later on.

Article Submitted By: Attorney Daniel Gold