Drug Testing and Family Law Cases

With the rise of technology, drug testing in family law has become increasingly popular. In the past, drug tests could take weeks to come back – now it takes just a matter of days. Drug testing has always been common practice in family law cases.

Why is drug testing important?

One of the main benefits to drug testing in family law is that it helps the Court in determining the best interest of the child. If a caregiver or parent is using drugs, it may not be in the best interest of the child to remain with that individual unsupervised.

A few of the best interest factors can directly correlate to a parent’s drug use, like:

• The ability of each parent to provide for the child's needs;
• The stability of each home environment;
• Any history of abuse or neglect by either parent; and
• The criminal history of each parent.

Drug testing can also provide evidence of drug use that may be difficult to obtain. If you don’t have pictures or videos of the Other Party doing drugs, a drug test will be able to confirm or deny your suspicion. Drug testing can help detect a hidden problem and bring it to light.

Drug testing can be ordered in any family law case including divorce, child custody, modifications, grandparent cases and CPS suits. Drug tests can be conducted through a variety of methods, including blood, hair, nail, urine, and saliva. Each method has its own advantages and disadvantages, and the type of testing will depend on the circumstances of the case.

What kinds of drug tests are there?

Hair testing and nail testing are among the most common types of drug tests performed in family law cases. Hair testing can detect drug use for a longer period than urine or blood. Blood testing may be the most accurate test; however, it is the most invasive and most expensive method of testing. Urine testing is less invasive and more affordable, but it can be easy to cheat.

There are also different panels of a drug test. There could be a six panel, seven panel, ten panel or even twelve panel tests. The panel count determines what specific drugs may be tested. For example, a twelve panel tests checks for Amphetamines, Barbiturates, Benzodiazepines, Cocaine, Methadone, Meperidine, Opiates, PCP, Oxycodone, Propoxyphene, Cannabinoids, and Tramadol.

How do I make the Other Party take a drug?

In order to obtain a drug test of the Other Party, you must file a Motion for Drug Testing. The Motion must lay out your reason to believe that the Other Party is using or abusing drugs. It is not enough to just assume the Other Party is using drugs. There must be a legal basis for the drug test. For example, if the Other Party was arrested or had prior convictions concerning drug use, or you witnessed them under the influence of drugs, that could be enough to warrant a drug test.

In CPS cases, a drug test may be ordered if there is evidence that the child has encountered drugs or if there is evidence of drug use by a parent. For example, if a child is born in the hospital and tests positive for drugs, a drug test of the parents will likely be ordered.

The Court you are in could also have their own standards for drug testing. In some Courts, a Judge may have a rule that any Party who wants to drug test the Other Party can, as long as the Party asking for the drug test pays for it. The Court may require both parties to take a drug test if one asks. In that instance, the Party asking for the drug test wants to be prepared to not only take a drug test but pass it. You should consult an attorney who practices in your specific Court to determine the policies and procedures surrounding drug testing.

How much does a drug test cost?

Drug test costs can vary depending on the type of test and the panel being tested. Most Courts in the surrounding areas of Harris, Fort Bend and Montgomery County use National Screening Centers for their drug testing. You can read more about National Screening Center on their website or contact them by phone for cost-estimates of the different tests.

What happens if I have a prescription for a drug the test checks?

It may be common to have a prescription for one of the drugs the panel tests for. If this happens, you will want to obtain your prescription from the doctor and supply it to the testing agency. The testing agency will perform a medical review to ensure that the prescription is valid.

In the event that a prescription is provided, and the testing agency determines you are not abusing the prescription, the drug tests will be concluded as negative (even though you tested positive). If the medical review determines that you are abusing your prescription, the agency may rule the result as positive, despite you having a prescription.

What happens if I tested positive?

If you were ordered to take a drug test and the results came back positive, you will want to consult with an attorney. There may be a clause in the Order for Drug Testing that lays out the terms and conditions for a Party who fails the drug test.

Step-Up Possession Schedule

If you tested positive for drugs, a step-up possession schedule may be put into place. A step-up possession schedule is one in which a Party works their way up to unsupervised or long periods of possession with their child. Depending on the severity of the drug test, a Party may find themselves at a different point on a step-up schedule. The step-up schedule is designed with the child’s best interest in mind so that they are not put in any danger because of a Party’s drug use.

Courts like step-up possession schedules because they can be a powerful tool to monitor compliance with the Court’s orders or parties’ agreements. If drug testing is ordered as a condition to regain custody or possession and access, it can be used to ensure that an individual is staying clean and sober.

An example of a step-up possession schedule is outlined below for someone who has a significant drug problem (the word “PARTY” refers to the individual who tested positive for drugs):

Step 1

Each Sunday following the first, third and fifth Friday of each month from 10:00 a.m. to 6:00 pm.

1. PARTY must complete a drug test and test negative for all drugs, except those prescribed, before moving on to Step 2.
2. Step 1 shall repeat until PARTY has fully complied with the conditions of Step 1.
3. Upon successful completion of Step 1, PARTY shall move to Step 2.

Step 2

Each Saturday and Sunday following the first, third and fifth Friday of each month from 10:00 a.m. to 6:00 p.m. (this shall not include overnights on Saturday).

1. PARTY must complete a drug test and test negative for all drugs, except those prescribed, before moving on to Step 3.
2. PARTY shall move back to Step 1 if he/she is unable to successfully comply with Step 2.
3. Upon successful completion of Step 2, PARTY shall move to Step 3.

Step 3

Each Saturday following the first, third and fifth Friday of each month beginning at 10:00 a.m. and ending the following Sunday at 6:00 p.m., and optional every Wednesday during the regular school term from 6:00 p.m. to 8:00 pm.

1. PARTY must complete a drug test and test negative for all drugs, except those prescribed, before moving on to Step 4.
2. PARTY shall move back to Step 1 if he/she is unable to successfully comply with Step 3.
3. Upon successful completion of Step 3, PARTY shall move to Step 4.

Step 4

A Standard Possession Order with Soberlink testing for 2 months.

1. PARTY must complete a drug test and test negative for all drugs, except those prescribed, before moving on to Step 5.
2. PARTY shall move back to Step 1 if he/she is unable to successfully comply with Step 4.
3. Upon successful completion of Step 4, PARTY shall move to Step 5.

Step 5

A Standard Possession Order.

Step-Up Possession Conditions

Supervision

Steps 1 through 3 shall remain supervised by a competent adult agreed to by the parties.

Drug Testing

• Before PARTY may move on to the next step, PARTY must submit to a 12-panel hair follicle drug test through National Screening Center.
• All costs of the drug test shall be paid for by PARTY.
• If the test is negative for all drugs, besides prescribed medications, PARTY may progress to the next step.
• A drug test, as outlined above, shall be completed before moving on to Steps 2 through 5.
• If a test is positive for drugs of any kind, besides prescribed medications, PARTY shall not move forward to the next step but shall move back to Step 1.

For more information about how drug tests could impact your case, contact us today at (832) 781-0320.