Drug Testing in Child Custody Cases

Often times in child custody cases, one parent will request the other party be required to complete a drug test. The reasoning behind the request may be because of an incident that occurred or an admission by the parent.

Because the Court bases a determination of child custody orders on the best interests of the child, under California Family Code section 3011, the Court has been given a tool to monitor drug use in certain cases.

California Family Code section 3041.5 states, “[The] court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.” Stated more clearly, any person suspected of “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” who is seeking visitation or custody may be required to undergo drug or alcohol testing.

The question then becomes, how does one parent show this “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol’? The code section states that it must be shown by a preponderance of the evidence. Preponderance of the evidence basically means “most likely than not” or 50% + 1.

So, if a parent is trying to prove drug or alcohol use by another party, they need to show the parent “more likely than not” habitually, frequently or continually has used drugs or alcohol.

What are examples of types of evidence? Thankfully, the code is also very clear about the types of evidence that can be used, stating, “This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance.” Not all drug or alcohol users will have a conviction regarding their habit, so an admission of one parent, testimony of individuals, or workplace concerns all can be used to help a parent meet the threshold of “more likely than not”.

If you are concerned about another party in your child custody case using and/or abusing drugs or alcohol, please call Bristol Haynes, APLC at 909-466-5575 for a consultation.

Taylor Warner

Taylor has always been an advocate. Growing up the middle child with an older and a younger brother, Taylor developed a strong voice and personality and has always felt strongly about helping others. Becoming a lawyer seemed to fit Taylor’s personality and character – she is a strong leader and a bold advocate. Learn more here.