Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.
Your argument for drug and alcohol testing of parents or others having
custody or visitation with children in California is found in
Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical
way to get drug testing was by the other party's agreement.
It is possible to convince a family court that the other parent should
be tested for drugs or alcohol where you present sufficient 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."
FC section 3041.5(a).
This evidence includes but is not limited to proof that the other person
has been convictedin the past five years of the illegal use or possession
of a controlled substance.
The other important statute you need to cite to the Court is
Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation
is in the best interests of children courts must consider evidence of
the habitual use of controlled substances (non-prescription or otherwise)
or alcohol - but first you must submit "independent corroboration".
In my experience what often happens when drug allegations are made is
that Family Judges prefer to get the parties to agree to drug testing
and only order it when they will not (or when recommended by family court
services or a mental health professional). If the parties will not agree,
judges may order the testing as long as there is some corroboration that
a potential drug issue exists. I am always amazed that people who are
using (who are "dirty"as we say) will agree to test when they
may not need to because there is insufficient independent proof of the
use of drugs. At the same time, maybe this is a good time to "stop"?
For more information about hair follicle and other drug-testing, click here!
How about a FB Like before you go?
Thurman W. Arnold
