Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do I get a court order for drug testing?
A. It is not possible in California to force another parent or custodian
of minor children to take a hair follicle test for drugs or alcohol absent
their agreement to do so.
Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: "If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees."
These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.
However, hair follicle testing will be ordered where both parties agree
or stipulate to it. This is more common than you might expect.
Sometimes this occurs at a court hearing where the Judge turns to each party and says something like "Mr. Jones, would you be willing to take a hair follicle test?" More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court ask Mr. Jones if he will agree. Nine times out of ten, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up." NOT!
Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he looks guilty. Mr. Jones may have recently cut his hair short or shaved his head - which is a good reason to ask the Court to order that Mr. Jones not visit a barber until the hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may himself be in denial, and so might lie easily from habit. Clients say and do all kinds of amazing things under the pressure of a courtroom full of eyes watching him (or her).
And, Mr. Jones may think that his hair sample will come back clean because he is not presently "using." Or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.
Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body. Don't trust that masking agents will protect you.
If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their addictions (the same ones that may have led to the breakup).
I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before. He said Mom had not. (This was evidently true).
At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to hair follicle test because she had insisted (in answer to direct questions to her first, in private) that she never used cocaine. After all, hair follicle tests are great if you are clean!
To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.
The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings that we'd gained, and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.
If you have been using drugs, don't agree to a hair follicle test unless you are clean. DO NOT LIE TO YOUR ATTORNEY. While we won't suborn perjury, we will protect you from your doing so, but we need all relevant information in order to protect you from you - which is one of our jobs. Ethical lawyers will not aid and abet a client in making false or misleading statements. That does not mean we will "rat" you out.
It is possible to get a confidential hair follicle test from an independent
laboratory (see bottom of page for self-testing ideas) before you write
a declaration or go to a hearing, and then present your clean test to
the judge at that hearing. If you find the test is positive for drugs, you don't need to share
it with the Court or anyone else. But in that situation an ethical attorney
will not let you make false statements either. You don't need to volunteer
certain evidence, but once you make a statement it better be true.
In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges. However, if you aren't done using, then you need to accept the reality of certain consequences.
By the way, for "legal" California pot-smokers, see this Guest Blog about a 2012 appellate court decision that suggests the the pendulum is swinging in your favor (or at least not as reactively against you!)
Thurman W. Arnold