What if you suspect that your ex is using illegal drugs or alcohol?   What can you do to protect your children?  If you suspect he or she is using an illegal substance, you can request that they submit to drug testing.

In determining the child’s best interest, trial courts must also consider either parent’s “habitual or continual illegal use of controlled substances” or “continual abuse of alcohol.” (Family Code §3011(d))

The Court will want evidence of a parent’s illegal drug or alcohol abuse.  The Court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services.   But what if that is not available?

A detailed declaration from you and/or other witnesses may be submitted.  When preparing the declaration, you should be as specific as possible.  List why you suspect illegal drug use, each incident of suspected drug use, and what the other parties’ reaction was when you or your witnesses confronted him or her.  The best witnesses are independent third parties.  Did a teacher, neighbor or complete stranger witness the drug use?  If so, their declaration should be included.

After reading the declarations, the Court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances or alcohol; and may order either or both parties to pay the costs of such testing.   The Family Code states that only urine testing is allowed, however I have seen mediators recommend and courts order hair follicle testing.   It is also common for a court to order both parties to submit to drug testing although only one is requesting it.

If the test is positive, the party who underwent the testing has the right to a hearing, on request, to challenge a positive test result.   I have yet to see a positive result successfully challenged.    Also, Family Code §3041.5 states that a positive test result “shall not” itself constitute grounds for an adverse custody decision, but those who abuse illegal drugs and/or alcohol usually commit other acts of poor parenting.   It is unlikely that a Court will find that even casual use of illegal drugs outside the presence of the children is not detrimental to the children.

REMEMBER:  Your declaration specifically should state each and every time you or your witnesses observe the other party abusing illegal drugs and/or alcohol.    Stating that the other party just “acted weird” is not enough.    You should also state in your requested order when, where, how often, the manner of testing, payment arrangements, and how results will be disseminated.    My practice has been to find a testing facility, ask how much urine testing costs, and be ready to pay for the first test prior to the other party testing.   My requested orders also state that if a test is positive, then the other party will reimburse my client for the test within 30 days.

A party subject to a valid court order (such as child support, spousal support, or visitation) who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order is subject to a contempt adjudication and statutory contempt penalties.

Orders enforceable by contempt include:

• Support Orders: Child, spousal and family support orders are based on an obligation arising out of marriage and parentage and are imposed by law. They are not money judgments in civil actions for the payment of a “debt” within the meaning of the constitutional guaranty against imprisonment for debt and thus clearly are enforceable by contempt.

• Child Custody & Visitation Orders: Child custody and visitation orders do not impose a “debt” obligation. Thus, e.g., the court may invoke its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights or violates an injunction restraining relocation with the children.

• Attorney Fees/Costs Orders: Need-based attorney fees and costs are awardable by statute in marital proceedings. The award is based on a law-imposed obligation (not arising out of a money judgment for a “debt”) and thus is enforceable by contempt.

• Property Division Orders: A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt. The obligation is “law-imposed” (not a “debt”) because based on the parties’ statutory right to an equal division of community property upon termination of marital status.

• Restraining Orders & Family Court Protective Orders: The court may properly invoke its contempt power to compel compliance with valid protective orders and restraining orders issued in a domestic relations proceeding.

• Failure To Comply With “Declaration Of Disclosure” Requirements: A spouse who has complied with the statutory “declaration of disclosure” requirements in marriage dissolution proceedings has various statutory remedies against the other spouse who has failed to comply. One such remedy is a motion to compel a further response. If the noncomplying spouse fails to file a sufficient response, the complying spouse may seek monetary sanctions “in addition to any other remedy provided by law.”