Why are drug or alcohol tests ordered in child custody case ?
Updated: Sep 21
Why are drug or alcohol tests ordered in child custody cases?
Drugs and alcohol tests in child custody disputes have always been a point of discussion. The grounds on which the drug tests are ordered by the court; the impact it has on the determination of custody or contact orders in case of disputes are some of the essential questions that are assessed by the court in detail before arriving at a decision. The Children Act 1989, the Children and Families Act 2014, the Families Law Act 1986 and 1996, the Child Support Act 1991, the Adoption and Children Act 2002 are some common sources of law that govern every aspect of a child’s life and their well-being in UK.
The following blog will help you to answer all your questions regarding drug and alcohol testing in child care proceedings and other associated matters.
1. Why and under what circumstances are drug tests ordered in child care proceedings?
Ans: It is not uncommon that partners allege each other of illicit drug or alcohol abuse after separation or divorce in child court proceedings. Very often such allegations are posed out of spite or malign intentions to seek full custody of the child instead of a joint custody. However, a mere allegation is not sufficient ground for the court to order drug or alcohol testing. The court takes makes multiple considerations before ordering a drug test. The objective behind a court-ordered drug test is to prove that the person is or continuing to remain drug-free. A drug test is required to safeguard a child and to assess the environment and living conditions that they will be exposed to.
Further adding to the above-given point; the court will likely need to see solid proof of alcohol or drug abuse before administering a drug test. There must be a ‘preponderance of the evidence’ such as past medical reports, past indulgence in drug-related offences, physical evidence of drug usage, testimonies of witnesses, testimonies or reports of social welfare agencies, reports of law enforcement bodies, etc that unequivocally suggests a history of drug-related abuse. Only on such solid proof if the court finds it necessary it may order a drug test.
2. What risks does the court perceive regarding children that are exposed to parents who have drug or alcohol-related abuse? How are they taken care of?
Ans: A child may be subjected to domestic abuse, neglect, emotional abuse, exposure to alcohol or illegal substance abuse, unsafe living conditions, unstable family dynamics resulting in physical or mental suffering of the child.
Similarly, many other risks are assessed in detail by the family judge while determining the custody of the child in an arrangement case. If serious concerns are posed to the child’s well-being the court may ask the CAFCASS or Social Services to prepare a report. If the situation demands the court can also order expert reports like psychological assessments or make referrals for the parents to attend parenting courses to deal with alienation issues. To further understand the parental alienation issues and how it impacts the child you can refer to this article.
Under dire circumstances, if the court is of the opinion that a child is exposed to drugs because of the reckless behaviour of the parent then such behaviour can result in jail time for such parent under child endangerment laws. Besides violating the child endangerment laws can lead to being subjected to mandatory supervisions from state government bodies or child services agencies. Repeated violations of the child endangerment laws or the mandatory visitation checks can result in the parent losing full custody of the child. Further, if both the parents are repeat offenders they can both lose their custody and the child will be placed under the supervised care of a local authority.
3. What type of drug tests are conducted in family law and the difference between them?
Ans: There are different drug and alcohol tests whose reports can be used by the court in child care proceedings. Samples are collected once the identification documents are submitted by the parent taking the test. The choice of the test to be ordered depends on the substance to be detected and the time frame of detection. These tests are as follows: hair from head and body
(also called the Hair Strand Test), nail clippings, urine, saliva.
Family courts generally use hair drug tests because it is easier to detect the drug for up to 12 months. Further, the samples from the head can be segmented in short batches to produce month-by-month analyses which will provide a historical pattern of the drug intake. Nail clippings can be used in cases when there is an insufficient hair sample available. It is surprising but true that the test can detect drug use for up to 6 months. Saliva testing is a comparatively quick method of testing and produces immediate results. The testing can detect recent drug use from 30-60 minutes after its intake up to 2 days. Also, urine tests can only provide detection for up to a few days depending on the type of substance taken. Thus, depending on the need and the circumstances the court may order any of the above tests.
4. Where and how are the drug tests conducted?
Ans: Since court-ordered drug tests are legal tests that are produced as a piece of evidence in the court they need to be performed under specific instructions as laid down by the judge. Further, the tests are conducted by recognised testing services to ensure the reliability of the evidence. In legal terms such instructions are known as a chain of custody which means that the donor’s samples must be collected under supervised observation to prohibit and eliminate any form of adulteration or tampering with the samples. Further, as a legal requirement the samples must not leave the custody of those who have a legal responsibility to ensure the authenticity of the results.
5. What is the procedure to request a drug test in child care proceedings?
Ans: If a parent wishes to request a drug test in child custody or contact proceedings then they can do so primarily in two ways. The attorney can either file a motion on the client’s behalf or the parent can themselves make a declaration before the judge informing them about their partner’s alcohol or drug abuse. It is important to note that a drug test is not automatically granted if a request is made before the court.
The allegations of alcohol or substance misuse have to be independently corroborated by the alleging party on the basis of witness testimonies, receipts of past drug-related offences, incriminating photographs and text messages, medical records, etc. The court may order drug testing if it deems appropriate based on the circumstances of the case and keeping in mind the best interests of the child. Secondly, the court may allow testing if it is an important piece of evidence; necessary in determining the child custody or arrangement orders. The objective behind either allowing or rejecting a drug test is to ensure that a child is cared for or placed in a safe living environment. Lastly, a family judge can himself order a drug test depending on the circumstance and merits of the case.
6. Is a drug test always ordered in a child custody case?
Ans: The simple answer to this question is no. Drug tests are not a necessity in child care proceedings but are ordered based on the facts and merits of the case. Parents are often of the opinion that if they request a drug test in a custody dispute; alleging their partner of alcohol or drug abuse they believe that such request is automatically granted by the court. However, a family judge may still not order a drug test even after a request is made if he is of the opinion that such test will not be necessary for determining the child custody and ascertaining other factors of the case.
We can try to understand this with the help of the following example. If a parent is accused of occasional drinking and recreational drug usage by another parent but they shared the care of the child before which means that the parent was well aware of the occasional drinking and drug usage but still chose to share parenting of the child. Then the court might take a robust view on the requirement of testing taking into consideration the age of the child, whether the parent is responsible when taking care of the child and keeping in mind the welfare checklist and the possible risks.
It is important to understand that even though the judge has a discretionary power to decide whether to allow drug testing or not, the interests of the child are the primary concern when deciding such matters.
7. Does a parent automatically loses custody if the drug test comes back positive? What are the repercussions of positive drug tests in child and contact orders?
Ans: It is important to note that a positive drug test does not necessarily mean losing custody or contact with the child. Family courts are keen on keeping families together so that the child can grow under the guidance, love and support of both the parents. This is simply because the judge takes into account the significance of the drug results and other expert reports like CAFCASS while making a decision about custody and contact orders keeping in mind the best interests of the child. The court is cautious while stopping the contact of any parent with the child and the reasons can be understood with the help of this article: Reason to stop child contact with the other parent?
They take into contact a number of factors generally known as ‘welfare checklist’. The list helps to evaluate the following questions which are essential for the upbringing and well-being of a child. These are as follows:
a) How capable the parents are to take care of the child;
b) The emotional, physical and educational needs of the child taking into account their age;
c) If they have suffered any harm while in the care of the parent;
d) How will the child perceive new changes w.r.t the surroundings and any other relevant matters?
Such a checklist will help the judge to form a holistic view of the matter and give a detailed judgement thereby. Having said that if the judge is of the opinion that even occasional drinking and recreational drug use by a parent is detrimental to a child’s wellbeing then their custodial rights can be curtailed. To this effect the court may prepare a visitation schedule carried out under a supervisor. Even though if a parent loses custodial right they still have visitation rights since courts do not like to severe all ties between the parents and the child. However, if both the parents are frequent drug users and the drug is being consumed in the presence of the child and further, the child has easy access to drugs then the court may rescind their custodial rights and grant it to a third party temporarily. For the time being the court sets up a treatment plan which the parent or parents have to undergo and further take frequent drug tests to show that they are clean of drug use. Failing to do so will also limit their visitation rights.
8. Case sample where the family court either denied or allowed custodial rights and contact despite the history of drug abuse of the parent.
Ans: Lets take an example of the following case W (A child: care proceedings) (2017) to understand on what grounds the courts usually grant or either limit the custodial or visitation rights of the parents. In this case, the child was placed under the care of local authorities since his birth because the mother was a drug abuser in the past. When the case came for final hearing the important concern before the court was whether it is in the best interest of the child to be placed under the care of a mother who has had a history of drug abuse. The mother claimed that she was drug free and had changed her life for good. Even though the drug tests came back positive from hair samples which could have been potentially due to metabolite found in the environment as per the expert opinion. The court held that it will be indeed in the best interest of the child to be under the care of a mother. On the other hand in the R (A Child: Care Order) (2017) where the mother was a constant drug abuser having no regards for her child who was initially placed in foster care home under an emergency residence order was later put up for adoption as in the opinion of the court it had no other alternative to adoption.
Thus, in conclusion it depends on the type of drug that has appeared in the test result that will ultimately decide what rights will be retained by the parents.
9. Can a parent who is alleged of alcohol or drug abuse refrain from taking a drug test? How will it impact the decision of a child custody case?
Ans: First of all, if a court orders drug testing against a parent and if they are not willing to undergo the tests the court cannot force them against their will. In such a case where the parent refuses to undertake a drug test the court tries to understand the reasons behind such refusal. The court further takes into consideration all the evidences, reports, witness testimonies that are already in its possession and draws inferences against the parent based on the evidence. It is generally advisable to take the tests as ordered by the court instead of blatantly refusing it as it may lead to severe consequences like losing parental rights over the child. As discussed earlier, a parent may still have visitation rights in case they have failed the drug tests however, if they deny taking a test they might end up losing both physical and legal custody of their child.
10. How can a parent appeal against the order passed by a family court based on positive drug results? Can the order later be modified if the parent pledges sobriety in the future?
Ans: Any parent whose drug results have come back positive can file a C650 form before the court to review their final order. C650 form applications have been specifically enforced to set aside or vary the orders given in child care proceedings. To answer the second part of the question, a parent can request a modification in the order if they have been sober for a considerable longer period. They may be required to submit proofs of their sobriety before the court. In certain cases, courts may themselves take suo moto cognizance and issue a modification in the order and extend their rights. However, if the other parent is doubtful and believes that their partner is still under the influence of drugs they can request a drug test before a modification order is issued.
11. Can parents who have undergone drug testing in child care proceedings apply for reimbursement? If yes, how much amount can be reimbursed and under what law?
Ans: Generally, in private family law cases the cost of drug testing is borne by the parties; however in few family law cases legal aid administered by the Legal Aid Authority will likely cover the cost of drug testing if certain conditions are met upon.
There are two conditions: The drug test must be requested by a judge and secondly the test must be conducted in consistence with the court order.
This article is NOT legal advice and should NOT be treated as legal advice.
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