Drug Testing in Child Custody Disputes

Singer, Usher Raymond and his Ex-Wife, Tameka Raymond are feuding over custody of their two children. They currently share joint custody but Tameka has been trying to get sole custody since December 2011, claiming that Usher secretly uses illegal drugs. Tameka has made several requests that the court order the singer to undergo drug testing. Usher contends that the accusations are “frivolous and unfounded” and intended to “harass and embarrass” him.

The court has yet to grant Tameka’s request. But this raises the question – when can the court order a parent to undergo drug testing?

In child custody matters the court is to consider what is the in best interest of the child. When determining the child’s best interest, the court must consider either parent’s use of illegal drugs and alcohol. In California, Family law courts may order any person who is seeking custody of or visitation with a child to undergo testing for the illegal use of controlled substances and the use of alcohol if the court determines based upon a preponderance of evidence (i.e. more likely to be true than not) that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent. (Fam. Code § 3041.5.) The court may require the accusing party to present independent corroboration before granting such a request, such as written reports from law enforcement agencies, courts, social welfare agencies, or medical facilities.

If the court does order testing, the party who is forced to undergo testing also has the right to a hearing, if requested, to challenge a positive result. (Fam. Code § 3041.5.) However, a positive test result (even if challenged at a hearing and upheld), does not by itself constitute grounds for an adverse custody ruling against that parent. The court must still weigh all relevant factors when determining the best interest of the child. Additionally, the test results are confidential and may NOT be used for any other purposes including any criminal, civil or administrative proceedings. Its only use is to help the court determine the best interest of the child for purposes of custody and visitation.

Before the court will consider Tameka’s accusations, she will likely have to present evidence to the court that supports her claims that Usher is using illegal drugs. And even if Usher were ordered to undergo testing and the result turned out to be positive, it does not automatically mean that Tameka would be given the sole custody she has been fighting for. It all comes down to what is in the best interest of their two children.

Drug or alcohol testing is just one of many issues that can arise in a custody or visitation matter. At Mello & Pickering, LLP, we handle countless custody cases and can answer any questions you may have. Call us for a free 20 minute phone consultation or to set up an in person meeting at (408) 288-7800.