TLD's General Counsel Blog

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

Compliance with Orders to Withhold, Wage Garnishments and Levies

Many employers and financial institutions are frequently forced to deal with Orders to Withhold (Wage Garnishments) and Levies resulting from tax deficiencies, judgments and support orders against their employees or clients. Failure to comply with the Order to Withhold or levy can result in financial penalties against the employer or financial institution, which essentially shifts the debt from the employee/client to the employer or financial institution. However, there can also be issues with compliance.

First, very specific rules and limitations apply to all Orders to Withhold and Levies. Some of these rules, such as the withholding periods and notice requirements are set forth on the Order or Levy. However, many of these rules are not provided directly to the employer or financial institution at the time the Order or Levy is received. Rather they are hidden within the California Code of Civil Procedure.

Recently, Tredway, Lumsdaine & Doyle successfully represented a financial institution from liability stemming from the company’s compliance with an Order to Withhold after their customer sued them for allegedly mishandling an Order to Withhold. Although the Court ruled in favor of the financial institution, the Court also held that the company had acted wrongly in submitting their customer’s monies to the State of California as demanded by the Franchise Tax Board. The Court found that, under the Code of Civil Procedure, the type of account was not subject to the Order even though the Order to Withhold clearly stated that the account was subject to the Order. Tredway, Lumsdaine & Doyle was only able to prevent the financial institution from liability by directing the Court's attention to an indemnity provision within the Code.

Every Order to Withhold and Levy thus needs to be handled carefully and with full knowledge of all laws related to the enforcement of debts.

Article Submitted By: Attorney Jennifer Lumsdaine

A Victory for Property Owners

In a victory for property rights advocates, Judge Vaughn Walker of the United States District Court for the Northern District of California, recently  found the City of San Rafael's mobile home park rent control ordinance to be unconstitutional.  More specifically, Judge Walker found that San Rafael's ordinance resulted in an unconstitutional taking of private property  in violation of the Takings Clause of the Constitution.  The court's ruling was based, in large part, on its finding that the ordinance resulted in a taking of 75% of the mobile home park's value.  The court further found that the ordinance did not protect fixed-income residents or create more affordable housing as San Rafael argued.  Instead, the court found that the ordinance created a premium in the resale prices of mobile homes located in the protected park and shifted wealth from the park owners to mobile home owners/pad lessees.

Article Submitted By: Attorney Kevin Casenhiser

Cell Phones and Driving Law

Tredway, Lumsdaine & Doyle, LLP would like to remind you that as of July 1, 2008, California law will prohibit drivers from using a wireless telephone while operating a motor vehicle unless the driver uses a hands-free device. Drivers who violate the law will face a base fine of $20 for a first offense and $50 for each subsequent offense.

Article Submitted By: Attorney Matthew Kinley

Another Tax Tip

When two separate, determining which parent is going to take the children as exemptions, look to the custody agreement/order first. The parent with greater than 50% custody is entitled to take the exemption. The parents that are on a true shared schedule, on alternating weeks for example, then the parents can each take one of the children (for 2 children) in the same year or alternate each year (e.g. for 1 or 3 children).

It only makes sense to release the exemption to the lower timeshare parent if it maximizes the collective tax benefit. This is because once an exemption is released, the child support under California law should be recalculated upward  to reflect the tax benefit the lower timeshare parent is receiving.  The Court may order the exemption to be released in limited situations. Because of the progressivity of the federal income tax, "the higher a taxpayer's income, the more valuable exemptions become .... As a result, the effect of awarding the exemption to the noncustodial parent is to increase the after-tax spendable income of the family as a whole, which may then be channeled into child support. ...” [Monterey County v. Cornejo (1991) 53 C3d 1271, 1280, 283 CR 405, 411]

When the exemption is released, it is important the child support order also clarifies that the release be conditioned on being current on support for that tax year. The noncustodial parent will want to have a condition that the custodial parent will cooperate in signing the IRS 8332 form required when the tax returns are filed with the exemptions that are taken.

Article Submitted By: Attorney Daniel Gold

Businesses and Individuals Interest Provision

Last month I blogged to remind businesses and individuals to write in an attorney's fee provision in all of their contracts, so that if there is a need to hire an attorney, then the fees would be recoverable along with the principal due in the contract.  Another issue that goes hand in hand with an attorney's fee provision is an interest provision.  Unless an interest provision is included in a contract, interest will not be recoverable until after there is a judgment.  There are some exceptions for fraud and consumer matters, but the general rule is that pre-judgment interest is not recoverable along with the principal amount unless the contract so provides.  The legal rate of interest is 10% per annum.  At a minimum, an interest provision should be in all your contracts, along with an attorney's fee provision.  That way, businesses and individuals will not lose money in time and collection efforts, giving you more time and money to focus on building your business.

Article Submitted By: Attorney Min N. Thai

Maintain Your Business Files and Do It Right!

For the first time in 16 years, the Federal Government has changed the I-9 Immigration Form.  As of December 26, 2007, the amended version of the Form I-9 is required. All employers, regardless of size, are required to fill one out for each new employee.

In addition, all companies will be required to use the new, 2008 Federal W-4 Forms for all employees.

TL&D can help ensure that your business is compliant with these changes, as well other corporate and employment related matters. Contact Shannon Jenkins or Annie Markarian to further discuss how we can be of assistance.

Article Submitted By: Attorney Annie Markarian

U.S Chamber Regional Finalist '08

Tredway, Lumsdaine & Doyle, LLP Honored as Finalist
for U.S. Chamber of Commerce Small Business of the Year

WASHINGTON, D.C., Tredway, Lumsdaine & Doyle, LLP in Downey, Irvine and Long Beach California has been selected for the second year in a row as a finalist for the U.S. Chamber of Commerce Small Business of the Year Award. Tredway, Lumsdaine & Doyle is one of seven finalists to be honored during America's Small Business Summit 2008, April 16-18 in Washington, D.C.

"Tredway, Lumsdaine & Doyle exemplifies America's spirit of enterprise and entrepreneurship and deserves recognition for a job well done, said Thomas J. Donohue, Chamber president and CEO. Small businesses are what this country is built on and their competitive spirit is an essential part of the past, present, and future of our economic growth and stability."

A diversified law firm with dedicated attorneys, specializing in a number of legal disciplines, Tredway, Lumsdaine & Doyle was selected this year for its commitment to its employees, to the local community, and to continued growth and entrepreneurship. One of example of its fine work includes a speaker's bureau for community groups and organizations interested in learning about employment and harassment issues. The firm's founder, Harold Tredway, bestowed on the firm a philosophy of public service that continues to inspire its practice today.

Each finalist was selected to represent one of seven regions across the country from among the winners of the U.S. Chamber Blue Ribbon Small Business Award. A selection committee will review each finalist to determine the recipient of this year's Small Business of the Year Award, which will be announced at a dinner ceremony on April 17 at the Renaissance Washington, D.C. Hotel. In addition to being honored at the Summit, finalists will receive a two-night stay in Washington, D.C. to attend the three day event.

Each finalist was selected to represent one of seven regions across the country from among the winners of the U.S. Chamber Blue Ribbon Small Business Award. A selection committee will review each finalist to determine the recipient of this year's Small Business of the Year Award, which will be announced at a dinner ceremony on April 17 at the Renaissance Washington, D.C. Hotel. In addition to being honored at the Summit, finalists will receive a two-night stay in Washington, D.C. to attend the three day event.

To learn more about America's Small Business Summit 2008 visit  

U.S.Chamber Web Site