Can I Request a Drug Test for My Ex During Our Custody Case?

drug test kit

Custody battles can be emotional and difficult for all parties involved. The uncertainty of the results while the case is ongoing can cause stress and worry for the parents fighting for custody. Some parents, particularly those with preexisting addictions, may turn to substances to ease the stress. If one parent suspects the other of using drugs, they may be able to petition the court to have drug testing performed.

Ordering a Drug Test

Mere suspicion of a parent’s drug use is not enough to impact a custody decision on its own. The court requires proof that the parent is using drugs before it will factor it into their decision about the child’s living arrangements. Obtaining this proof starts with the suspecting parent filing a motion with the court asking for drug testing to be completed.

The motion to request drug testing should be filed with the help of an attorney who is experienced in custody cases. Once filed, the courts will schedule a hearing. This hearing is intended to give each parent the opportunity to defend their side of the argument and for the judge to determine whether drug testing is the appropriate next step. Note that, when a judge decides drug testing is necessary, they often require both parents to submit to the testing. This happens most frequently when the suspecting parent has a confirmed history of drug abuse themselves, or when both parents are accusing each other of drug use.

A parent who petitions the court to request drug testing should compile as much evidence as possible regarding the other parent’s drug use. For example, posts made on social media, text messages, and witness accounts can be beneficial in proving why drug testing is necessary. One thing all parents should avoid is lying about their co-parent’s drug use to get back at them or in the hopes of restricting their visitation time. Family courts take false accusations seriously and making such accusations can backfire.

The Testing Procedure

Court-ordered testing will depend on the specific accusations of drug use involved in the case. Certain testing methods may be ordered by the court because they provide certain advantages, such as detecting substances for a longer period of time after use. Parents are usually responsible for completing the ordered testing. Examples of testing methods frequently ordered by custody courts include:

  • Urine tests: Urine tests are frequently used by the courts because they are capable of detecting alcohol in someone’s system for up to 80 hours after use. Certain drugs can be detected through urine tests for months.
  • Blood tests: Blood tests are mostly used to detect alcohol use, as most drugs are metabolized out of the bloodstream within a few hours. Alcohol, however, can be detected for up to 80 hours.
  • Saliva tests: Alcohol can be detected in saliva for up to 80 hours, like urine and blood. Drugs can be detected up to 48 hours from when they were used.
  • Follicle tests: Hair follicle testing is frequently ordered for people suspected of using harder drugs. This form of testing can detect drug use for up to 3 months and alcohol use for 30 days.
  • Nail tests: Nail clippings are also tested due to the duration of time drugs and alcohol can be detected in them. They can be detected for up to 6 months post-use.

Positive Test Results

Positive drug test results will have a big impact on the outcome of a child custody case. The consequences of such a result will depend on what substances the parent tested positive for and how recently it is estimated that they last used the substance. For example, a parent who tests positive for recent use of hard drugs may be penalized more severely than a parent who tests positive for alcohol use.

The courts may ask the parent who tested positive to enroll in drug abuse treatment and parenting classes. Completing these requirements may prove to the court that the parent is serious about creating a positive environment for their child. The parent may also be required to submit to another test after a predetermined amount of time to see if they are sober.

Ultimately, family court judges will always put the best interests of a child above the interests of that child’s parents when making custody decisions. If they feel a parent who tested positive cannot responsibly care for their child, they may be granted supervised visitation with the ability to petition for more custody if they stop using drugs.

We’re Here to Help

If you’re in a custody case and need legal representation for drug-related issues, the Law Office of Nicholas T. Exarhakis can help. We understand that these are difficult times, which is why we will fight aggressively on your behalf. Contact us at (410) 593-0040 or online to schedule a free phone consultation.

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