Steven Fernandez |

Child Custody

Rampant alcohol and drug use can pose a serious threat to the safety of your family. It is not uncommon for parents, under the influence of drugs or alcohol, to abuse or neglect their children. When you are married, you have some control over a potentially dangerous situation. When you get divorced, however, you may have limited control over the safety of your children if both spouses are awarded custody. In Los Angeles, if you believe that your spouse’s drug use will be an issue, you can ask the court to require your spouse to take a drug test in a child custody case.

Best Interests of the Child

California has a stated interest in keeping children of divorce in frequent and continuing contact with both parents. As a result, courts are eager to award joint physical and legal custody when parents get a divorce. However, the court will not hesitate to revoke custodial and/or visitation rights if awarding custody to a particular parent would put a child in harm’s way.

While keeping children in contact with both parents is ideal, the number one priority in child custody cases is determining what is in the best interest of the child. If a parent is accused of having a drug addiction or dependency a court may be hesitant to give that parent custodial rights. California Family Code Section 3011(d) requires that courts consider a parent’s “habitual or continual illegal use of controlled substances or habitual continual abuse of alcohol” when making custody determinations.

Backing Up Your Request

Just because you believe that your spouse has a drug problem does not automatically mean that the court will order a drug test. Divorces are difficult, and this is even truer when children are involved. Parents, whether through fear or vengeance, may falsely accuse another parent of drug use in order to get sole custody. If you firmly believe that your soon-to-be ex-spouse’s drug habit will put your children at risk you must be able to prove that to the court by a preponderance of the evidence.

The standard of “preponderance of the evidence” simply means that something is more likely to be true than not. This is a relatively low standard. If you can provide some proof to back up your claim the court will likely order your spouse to take a drug test. Evidence that may be helpful in substantiating your claim include:

  • Prior drug-related criminal activity;
  • Documented history of drug use;
  • Witness testimony;
  • Affidavits from social workers; and
  • Medical records.

The court, believing that there is sufficient proof to show there is “habitual, frequent, or continual use” of drugs or alcohol, can order that parent to take a drug test.

Results of a Drug Test

A court, when deciding that a drug test is necessary, must order the least intrusive drug-testing method that is available. When the results of their drug test come back the court is required to use the information narrowly. The law explicitly states that a positive drug test result cannot automatically result in an adverse custody decision. Instead, the court is required to consider the positive drug test result with all other relevant factors to determine what is in the best interest of the child.

California Family Code Section 3041.5 provides the authority to order a drug test and the guidelines for how this test must be administered. The law also provides certain protections for the parents who are ordered to take a drug test. Important aspects of Section 3041.5 include:

  • Test results must be confidential. Courts are required to seal drug test results and are prohibited from releasing information in most cases. Violations of this confidentiality can trigger civil fines of up to $2,500.
  • Test results must only be used for the determination of child custody. The results of a court-ordered drug test in a child custody hearing cannot be used in other criminal or civil matters.
  • Parents can challenge positive test results. If a drug test does, in fact, come back positive a parent has the right to challenge that finding. Parents may undergo additional testing or argue inaccuracies and weaknesses in the testing procedure.

Should You Request a Drug Test in Your Child Custody Case?

Do you think that your spouse’s drug or alcohol dependency puts your child at risk? Are you fearful that your child will suffer if your spouse is awarded custody? If you can provide some evidence that your spouse has a problem you can ask a court to order a drug test.

It is important to know that the court will probably also require you to take a drug test, as well. If you do not think that you can pass this test or that its results would reflect poorly on you, it may not be wise to request an order for your spouse. The court also has the authority to require you to pay for the drug test(s). This can be expensive. If you are not certain that a drug habit exists it may not be in your best interest to request a drug test.

Contact the Los Angeles family law attorneys at Fernandez & Karney if you are struggling with a spouse’s drug habit. We can help to make sure that your children are not put in harm’s way after your divorce. We will investigate your spouse’s alleged drug and/or alcohol use and convince the court that a drug test is necessary. When that test comes back positive, we will argue that awarding custody to your spouse is not in your child’s best interest. Call us today for a free consultation to learn more about how we can help to keep your family safe.