Change isn't Always Negative we can help there is a positive future ahead
Change isn't Always Negative, we can help you move on there is a positive future ahead
By: The Sampair Group

Drug Testing in a Child Custody Case


When parents go their separate ways, things can often get ugly when it comes to sharing custody of the children. In these situations, it’s not uncommon for one parent to begin accusing the other parent of unsavory behavior in an attempt to gain full custody of the child. In some situations, these accusations are unwarranted, while others turn out to be necessary to help protect the child in question. Regardless of whether the accusation is true, however, the parent who faces allegations of drug abuse may have to undergo drug testing as part of the custody case process. The following information will help guide you through this process.

Greater Authority

In a criminal law court, the judge must find probably cause to order the individual in question to submit to a drug test. This is to protect the rights of the accused and to prevent individuals from making these false allegations. However, in the family court, these restrictions aren’t in place. The judge in these situations can order a drug test based on the simple word of one party, primarily because this situation can impact the health and well-being of an innocent child. They are free to make this decision based on what’s in the best interest of the child in the custody case. However, this doesn’t mean the other parent can be forced to submit to the drug test. Unfortunately, failure to submit to the drug test can have dire consequences, which is why it’s important to think it through and talk to your attorney before denying the test. This is because a judge in the family court can make an inference from your refusal to submit to the test, treating you as if you had tested positive for illegal substances. Therefore, if you are clean, it’s best to undergo the drug testing to clear up any misconceptions the other parent may be trying to pass as truth.

What Happens After a Positive Test

Upon completion of the drug testing, the judge will make decisions based on the results received. If you fail the drug test, it’s likely the judge won’t give you the same rights as a parent who tested negative for any of these substances. This often includes severely limiting the amount of time you have with your child, often requiring supervision of some form in order to protect the child. You aren’t likely to be allowed to keep your child overnight until you have proven you are able to go without drugs. The court will put into place a number of safeguards to ensure the child is safe from exposure. For instance, in addition to supervision, you may have to undergo random drug tests to monitor for usage. In some situations, you may also be denied any visitation time you are awarded if you happen to test positive immediately before the visit is set to take place. Once these random drug tests have shown you are clean and the likelihood of staying clean is high, the judge may re-evaluate the case and grant you more parenting time. This may take place on a progressive scale, gradually increasing the amount of time you can spend with your child, ultimately ending with a similar parenting plan as individuals who never tested positive for drugs in the first place. However, the burden of proving you are clean and intend to stay that way lies with you.

Just as with any other type of situation, however, the type of drugs you test positive for can have a dramatic impact on how your custody case is treated going forward. Some types of drugs are widely associated with angry and irrational behavior. Because of the increased dangers a child faces when in the presence of someone who uses these kinds of drugs, the judge is more likely to award strict supervised visits for short periods of time to protect the child. Harder drugs will also require a much lengthier process in order to prove you are getting clean and intend to stay that way. In some cases, you may be ordered to successfully complete an accredited rehab program to prove you are working hard to be the best parent you can be for your child.

One exception to this issue is the introduction of medical marijuana in Arizona. Although there are recreational users who have been able to get access to medical marijuana, the courts are giving these individuals the benefit of the doubt in many custody cases. However, it’s always important to discuss your drug use with your attorney to prevent any surprises in court.