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When are Drug and Alcohol Tests Used in Child Custody Cases?

Posted On January 11, 2021 In Child Custody

Drug and alcohol tests are used in child custody cases when one parent accuses another of substance abuse.  Sometimes both parents accuse the other of drug or alcohol abuse.  There are times parents use these allegations in an effort to acquire child custody; however, family law court judges often prefer to err on the safe side and have both parents tested for habitual use.

A family court judge is not like a criminal court judge.  He or she does not need probable cause to order drug and alcohol testing.  A simple accusation is enough to order testing due to the impact on an innocent child’s health and well-being.  

Does a Parent Have a Right to Refuse a Drug or Alcohol Test?

The parent or parents ordered to submit to testing do not have to comply, but a choice not to test can be interpreted by the court as a positive result.  This may reflect negatively on the parent’s custody case.

There are types of proof used other than drug and alcohol testing to establish a parent’s drug or alcohol dependence.  This includes:

  • Any evidence of criminal activity while under the influence of drugs or alcohol;
  • Prior documented drug use;
  • Witness testimony;
  • Medical records; and
  • Social worker affidavits.

What Happens if a Parent Fails Their Drug or Alcohol Test?

If a parent fails their drug or alcohol test, their rights to child custody and visitation will probably be limited to a certain number of hours before supervision or take place in some form that protects the child.  There will likely be no overnights until the parent has a pattern of clean drug tests.  

Safeguards will be in place to ensure the child is safe from drug exposure, such as random drug and alcohol testing to monitor for usage and denial of visitation time for positive tests before child visitation.  

If random drug and alcohol tests prove clean, the judge will re-evaluate the case and likely grant more visitation time on a progressive scale.  Visitation will increase gradually with an ending point at the same or similar parenting plan as individuals without positive drug tests.

Certain drugs can profoundly impact the momentum of a case.  Especially those drugs with profound effects on parental behavior and greater difficulty to quit.  In such instances, a parent may need to attend a rehabilitation program to prove the ability and drive to become a fit parent for their child.

Divorce and breakups are painful and can be devastating when children are involved.  The tension and stress of a child custody battle can lead to a tug of war between parents for child custody rights.  If you are in a child custody fight or fear another parent is abusing substances, contact Wilson-Goodman, PLLC.

It is too risky to let your child alone with an addict parent after a divorce.  Therefore, at Wilson-Goodman, PLLC, we recommended filing for a drug test as soon as possible in a custody case. Contact our Chandler divorce attorneys today.