Divorce proceedings can become contentious, especially when the court needs
to determine who will be granted custody of any children involved. A common
way that a parent may attempt to secure custody rights is to prove that
the other parent cannot provide the best situation for the children, which
can include submitting a court order to request drug testing.
California Family Code section 3041.5 states that, “the court may
order any person who is seeking custody of, or visitation with, a child
who is the subject of the proceeding to undergo testing for the illegal
use of controlled substances and the use of alcohol.”
Just because your spouse requests drug testing, it is up to the judge to
determine whether or not there is enough evidence to warrant the test.
This evidence can include: a conviction for the illegal possession or
use of a controlled substance within the past five years; frequent, continual,
or habitual use of a controlled substance; frequent, continual, or habitual
use of alcohol.
In many cases, if your spouse requests that you be tested, it may be in
your best interest to request that they be tested as well. If the court
determines that there is enough evidence to warrant a drug test, they
will follow the testing standards created by the U.S. Department of Health
and Human Services for federal employees and require you to submit a urine
sample. Urine testing has limitations, so you and your spouse may agree
to a more thorough test of nail or hair follicles.
In case of a positive test result, under California Family Code, anyone
who has undergone drug testing has the right to challenge a positive test
result in a hearing. Even if the positive result is upheld, it “shall
not, by itself, constitute grounds for an adverse custody or guardianship
decision. Determining the best interests of the child requires weighing
all relevant factors.”
All test results will be confidential, and the record will be sealed in
the court file. Until the authorized study is complete, the only people
who will have access are you, your spouse, your attorneys, the Judicial
Council, and anyone granted express written consent by the court after
notifying all parties involved. Breaching this confidentiality can be
punished by civil sanctions of up to $2,500, and the results may only
be used to determine the best interests of the children when making a
Divorce cases, especially when children are involved, can be complicated
and contentious affairs. Our divorce attorneys at James D. Madden &
Aruna P. Rodrigo, Family Law Attorneys are confident in their ability
to provide you with the legal guidance required to fight for the outcome
you need and deserve. Contact us today to set up a
free case consultation.