In Divorce

Drug and alcohol testing is sometimes ordered or agreed to during the course of custody and visitation issues. The court is guided by the best interests of the child and determining if there is a substance abuse issue with a parent is consistent with that charge. As such, the court can order one or both parents to submit to testing whether the parent agrees with it or not. Sometimes a parent will willingly agree to the testing because they feel they have nothing to hide and do not think the testing is intrusive. This type of cooperation can move the process more quickly than if the testing is objected to and is one of the reasons some attorney’s will counsel their clients to submit to a test. These agreements can also allow the tester (and their attorney) more input on the type of testing and the testing procedure. Negotiations for the start or extension of parenting time immediately after a negative test should also be part of the agreement. If there is no agreement, then a hearing will need to be heard by a judge who will then make a determination as to whether there exists good cause for substance abuse testing. If so, the judge, not the parties, will determine the type of testing and the testing procedure and the results of a positive or negative test.

There are three types of tests; a urine test, a hair follicle test and a breathalyzer. The urine test is the most common. The hair follicle test is preferred by most attorneys since it tests for a wide variety of substances, tests over a long period of time, can be a one-time test and is the hardest to manipulate. The breathalyzer only tests for alcohol but provides real-time results, is easy to use, is cost effective and is the best method of continuous monitoring. Regardless of the type of testing chosen, it is important the orders be clear as to the specifics of the testing. When and how the test is to be administered, who gets the results and how, who pays for the testing, the results of a skip or late test, the definition of a failed test and what immediate steps, if any, are to be taken upon notice of a failed test.

It is important to keep in mind what testing can and can’t do. Testing can demonstrate a finite period of sobriety or lack of sobriety. Testing can confirm suspicions or provide assurance. Testing can provide immediate notice of a potentially unsafe situation. Testing cannot absolutely protect children. Testing can’t prevent a parent from engaging in certain behaviors. Testing can’t cure a disease. Testing can’t absolutely prove or disprove there is a substance abuse issue.

It is not uncommon for parents to accuse each other of bad acts – especially when custody/parenting plans are in dispute. Care must be taken to list concerns on a good faith basis lest you lose credibility with the court. If there are serious concerns regarding substance abuse, there are ways to address it. The goal, however, should not be to shut a user/addict out of a child’s life. The goal should be to get the user/addict into treatment and develop a plan to allow for safe parenting time. A healthy relationship with both parents has been consistently shown to be in the best interest of children, and a big predictor for healthy adults.

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