California Family Code section 3041.5 provides a mechanism for drug and alcohol testing for parents involved in custody disputes. Testing can be ordered if the court finds, by a preponderance of the evidence, that a parent uses illegal drugs or alcohol habitually or continually.
It doesn’t end there, however. The tested party is entitled to a hearing to challenge any drug results. So, a positive test, in and of itself, is not sufficient grounds for a ruling to limit or terminate custody rights. However, it can be a huge factor in evidence.
Interestingly, only certain tests are allowed thanks to a case known as Deborah M. v. Superior Court (Daryl W.) (2005) 128 Cal.App.4th 1181. In Deborah M., the court held that because Family Code section 3041.5 requires drug testing to conform to federal drug testing procedures and standards, only urine testing is allowed. A preferred test, the hair follicle test, cannot be ordered by the court unless the parties agree. Hair follicle testing is more reliable than urine testing because the evidence of substances remains for as long as the hair follicle exists, whereas in urine testing the substances pass out of the system in 24 hours. Regardless, the Court has made it clear that the code’s requirement of conformity to the federal standard of urine testing is what will be allowed. Of course, parties can agree to a more stringent standard.
If a client of mine is worried about the other parent’s alcohol or drug use, but there is not enough evidence to get a drug test ordered or there is a concern that unrine testing will be insufficient, I often recommend that the client try to get an order for a mutual prohibition of alcohol or illegal drug usage in the presence of the child.
If there is a past history of addiction, the Court will often require attendance with a sponser at Alcoholics Anonymous or Narcotics Anonymous. Whenever I represent a party with a history of addiction, no matter how slight that history may be, I often recommend and even insist that the client attend AA or NA as a protective measure in the case. I have never seen a Judge punish a party for going to meetings.
I have also had cases in the past where there is concern that a client is abusing prescribed pain medication such as Oxycontin. In such case, it is a good idea for the non-using parent to insist that there be controls in place to ensure that the other parent doesn’t abuse his or her medication. For instance, there should be a pain management contract regulating the use of controlled substances. I have also had success in getting orders for mass spectometry and liquid chromotography testing, which does a more thorough examination of a urine sample using laser technology. Not only does it give a qualititative result (i.e., relating to the presence of a substance) but also gives a quantitative result (i.e., how much of a given substance is present). This is helpful because the test itself is a simple urine sample type test, so it is no more invasive than any other urine test, but the data is so much more useful. It is especially helpful in determining whether a pain management patient is compliant with his contract or if he is overusing a particular medication or is mixing the medication with alcohol. Although I have been successful in getting orders for such a test, I have seen no caselaw to test whether it meets the standard set out in Deborah M.