Drug Testing: What You Need to Know

In the course of a divorce or parentage action, sometimes an already difficult situation is made more difficult because one parent struggles with substance abuse issues. When substance abuse is at issue, it is not uncommon for the parent alleging drug abuse to request drug testing. This request is not taken lightly by the Court and as such it is imperative that the requesting parent put together a strong case. In order to understand what a strong case for drug testing looks like, it is important to first understanding why the Court is willing to order such testing in the first place.

For those familiar with the standard in custody cases, it is known that the golden standard in making rulings on custody and visitation is “the best interests of the child”. When making decisions on where a child should live, where they should go to school, etc. the Court first and foremost considers what is in the best interest of that child in that particular case. This means that there is no one rule fits all. However, in cases where drug or alcohol abuse are at issue it is generally the case that the Court opines that it is not in the child’s best interest to be exposed to such substances and similarly not in the child’s best interest to be in the care of a parent under the influence. Despite this fact, it is not always the case that the Court will order drug testing.

When making a request for drug testing, the requesting parent must provide proof to the Court that the other parent does in fact have a substance abuse problem and that such abuse has occurred recently. For example, if a parent comes to the Court with proof that the other parent was arrested for possession of a controlled substance a year ago then it is not likely that the Court will order random drug testing because of the outdatedness of the evidence. Further, it is important to take into consideration the fact that substances such as marijuana are now legal in California. This legalization of marijuana poses a new issue in custody disputes. What once was an illicit substance is now legal and considered no different than alcohol. Therefore, the Court is not concerned as to whether the parent is using marijuana but rather is concerned as to whether the parent is under the influence of marijuana while the child is in that parent’s care.

In the case of Drake M, 149 Cal.Rptr.3d 875, the Court reversed the trial Court’s decision to remove the children from father’s care when it was proven that father used marijuana at least four hours prior to seeing the children. In making its decision, the Court found that the Court had not been provided sufficient evidence that father was still under the influence of marijuana and unable to care for the children. The issue with this standard of course is how does one prove that the parent is ‘under the influence’ of marijuana? Unlike alcohol consumption, there is no set limit or test to prove whether a parent is over or under the “legal” limit. Hopefully, with time, the family courts will finesse this issue.

Here at Mello & Pickering, LLP with 40 years combined experience, we know the ins and outs of the custody and divorce process and can make sure that your divorce is resolved as easily and efficiently as possible. We have successfully assisted many clients in their request for drug testing, as well as assisted clients in opposing unwarranted requests for drug testing.

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