Drug Testing in Child Custody Cases


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 attorney, 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 custody ruling.

Divorce cases, especially when children are involved, can be complicated and contentious affairs. Our divorce attorneys at Family Law Advocacy Group 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.

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