The recent case of In Re Drake M., decided December 5, 2012, makes clear that the mere usage of drugs by a parent, in and of itself, is not sufficient evidence that the minor child has been harmed or was placed at risk of harm from the parent’s drug use. While the Drake case dealt with marijuana use, it is applicable to other cases.
It is also important to note that the only type of drug testing allowed in the State of California at the present time is urinalysis. The court can only order urinalysis. The court could make such testings random. A client should also know that before the court will order drug testing by urinalysis, there must be corroborating evidence of drug use. It is not sufficient for the mother or father to accuse the other parent of drug usage, but, the court must find independent corroborating evidence before the court will issue a random drug test. Such corroborating evidence could be a police report, friends, neighbors, etc.
If a parent was to test positive for drug use, we would work with that parent to rehabilitate he or she to regain custodial time. Every case is different and depends upon the type of drug usage, the frequency of drug usage and the circumstances of drug usage. A parent who has used drugs in the past should not give up their custodial rights without consulting an attorney. Please remember that the accusing parent has to have corroborating evidence. Additionally, even if the parent has been found through a urinalysis to have used drugs, there are many avenues to pursue to rehabilitate that parent in a custody dispute.
We are familiar with blood testing, hair follicle testing, and urinalysis and can advise a client whether or not to take a such tests. Many times it may be the type of proof that is needed to convince the other parent or the court that drug usage has not occurred. Too many times parents have suspicions that interfere with the other parent’s willingness to allow custody or visitation to the other parent. A simple hair follicle test can alleviate those fears. However, again, an attorney should be consulted before you ever submit to a hair follicle test. Hair follicle testing can detect drug usage as far back as six (6) months for a heavy user and perhaps three (3) months for a light user. Again, these are all items that should be discussed with an attorney.
Richard A. Dinnebier