Judges Have Discretion on When to Order Drug Testing
Under California Family Code Section 3041.5, a judge “may” order drug testing of a parent (meaning the judge has the discretion whether or not to order it) in a custody, visitation, or guardianship hearing, but only when, “there is 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 parent…”
What this means is that, before the judge will even consider ordering a drug test, the other party will need to show evidence of “habitual, frequent, or continued illegal use” of drugs. Thus, a judge will likely not order drug testing based simply on an accusation, and the drug use must be “illegal,” although a judge may order testing related to excessive use of alcohol as well.
Drug and alcohol use is a common source of conflict in marriage and co-parenting situations. Certainly, abuse of drug and alcohols can affect a parent’s ability to raise their child, and may even put the child at the risk of abuse or neglect. But, at the same time, California places keeping parents and children together and in contact as a high priority, and thus drug or excessive alcohol use by one parent does not necessarily disqualify them from having custody or visitation rights. A relatively recent tool incorporated by California courts in custody and visitation hearings is the ability of judges to order drug testing of one or both parents in making custody and visitation determinations.
How Drug Testing Will Be Administered
If the judge does decide to order drug testing be done, the testing must be done in the least intrusive manner and in conformance with federal policy for testing of employees. This means that urine testing will most likely be done, as opposed to more intrusive testing methods such as hair follicle testing.
The parent forced to undergo testing will also have the opportunity to contest a positive result in a hearing.
Drug Use is Not a Disqualification to Custody and Visitation
The California code specifically states that, “A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision.” Instead courts will consider the results of the test along with all other relevant factors affecting the best interests of the child in making any custody or visitation determinations.
Putting Your Best Foot Forward in Custody Matters Involving Drug Use
Drug testing is a delicate subject in custody and visitation hearings, and should be approached thoughtfully and strategically by both parents. While courts take drug and alcohol abuse seriously with regard to raising a child, they also do not look kindly upon one parent using unjustified tactics to demonize and antagonize the other parent. Work with an experienced California family law attorney to address drug and alcohol issues and all other issues affecting visitation and custody.
Get Answers to Your California Family Law Questions
At Kearney | Baker in Pasadena, we represent spouses through all aspects of the custody and visitation process. Our partners, Brian A. Baker and Gary W. Kearney, are both Family Law Specialists, as certified by the California State Bar. To schedule a consultation regarding any questions about family law in California, contact one of the family law attorneys at Kearney | Baker today at 626-768-2945.