Parental substance abuse is a legitimate consideration in child custody using ‘best interest’ determinations. On this issue Courts can consider the absence or presence of written reports from law enforcement agencies, courts, probation or social welfare departments, and medical facilities. If there is a finding of good cause, the Court can order drug testing pursuant to Family Code Section 3041.5 (a). To justify imposing a drug test, the Court must make findings by a preponderance of the evidence of habitual, frequent or continual abuse of controlled substances or habitual or continual abuse of alcohol. Under California law, the Court can only order urine testing which comply with the procedures established by the United States Department of Health and Human Services.
California law does not permit the Court to order a hair follicle test because of the debate concerning the reliability of the test, although parents frequently stipulate to the test because it can trace back drug use for approximately 90 days. Not surprisingly, there is controversy about whether or not the use of marijuana differs from the use of alcohol or other drugs–particularly when the marijuana use is by prescription for treatment of pain or other conditions. However, as with any analysis of intoxicants, whether lawfully obtained or otherwise, the question should center on whether or not the use impairs the ability of the parent to care for the child.
Need help with adoption, annulment, collaborative divorce, community property, child custody, child support, divorce, domestic violence, legal separation, litigation, mediation, legal separation, paternity, spousal support, pre-marital and post-marital agreements? Family Law questions go beyond the limits defined in this blog. For more information, call or e-mail the Law Offices of Richard E. Bawden, State Certified Family Law Specialist. The Law Office of Richard E. Bawden serves the Inland Empire including Riverside, San Bernardino, Rancho Cucamonga, Fontana, Redlands, Loma Linda, Mentone, Yucaipa, Beaumont, Banning and Hemet.