What can I do about my child’s father’s prior drug use?

Posted on Feb 18, 2019 by Katie Carter

Drug and alcohol use is always a big deal in a custody case, especially if it is (or has been) the kind of drug use that interferes with a parent’s ability to hold down a job or co-parent effectively.

In my experience as a divorce and custody lawyer, I’ve seen cases that have run the gamut. Former addicts who’ve gotten clean, and some who just can’t seem to get their acts together. I’ve even seen some who refuse to try at all.

But, if your child’s father is a user, or has been a user previously, what are your options? What do you do when you just don’t trust your child with her father?

If you’re concerned about your child’s father’s previous drug use, we can ask for drug testing. Obviously.

Ideally, it would help if you are fairly knowledgeable about your child’s father’s drug use, and the time period during which he has used. There are so, so, so many different types of drug tests; a lot of times, attorneys, judges, and guardians ad litem make mistakes where drug testing is concerned because they just don’t know enough to order the right test to get the job done.

A standard drug test using hair only tests for traces of a certain number of drugs. There are panels available that test for more (up to like 17 different substances!) but that’s not the “standard” test, and often the judge doesn’t specify. If your child’s father is using a less common substance, or one that’s just not generally tested for, he could show up clean.

Also, some tests have results that cover a longer time period than others. A urine test, for example, is only positive for most substances (marijuana is an exception) for 3-4 days on average. (Of course, that’s an average, and different people can test differently.) For marijuana, on the other hand, a regular user can still show traces in his urine for 3-4 weeks, on average.

You’ll want to be sure you know so that you can request the right test for the situation.

Can we just ask for the 17 panel drug test anyway?

Maybe. It’s worth a try. But it’s kind of a hard thing to do, because it would require educating the judge/guardian ad litem on different kinds of drug testing, which takes valuable time in court (we rarely—as in, like, never—have oodles of time!). Not only that, but if we don’t have some kind of evidence that we do believe he’ll pop positive, it could be seen as unnecessarily prejudicial. Certainly, his attorney will object. Historically, judges are kind of difficult to sway on this point; they tend to favor a certain type of test (usually, hair or urine), and they don’t like to sway from that, absent some kind of compelling evidence. Is it possible? Sure. And we can try. But it’s definitely not guaranteed!

Will I be drug tested, too?

Probably! After all, fair’s fair, right? And what’s good for the goose, and all that? You should be prepared to be tested, too, and, if YOU pop positive, well… I don’t need to tell you, that’d be catastrophic for your custody case.

Can I ask for repeat testing, or for him to take a test at home before he takes our child?


If he pops positive, there’s a chance the judge will order repeat testing. If he doesn’t… well, I think probably not, because it would look abusive and, again, unfairly prejudicial.

There ARE at home drug tests (kind of like pregnancy tests) where you either pee in or spit in a cup. Sometimes, a judge can order that the parent use these before visitation can take place. In other cases, the other parent can agree to do it. I think it’s probably unlikely, but it’s still a possibility.

What if he WAS a drug user, but he’s sober now? How can I trust that he won’t relapse?

So, this is a tricky area. Almost all drug users have periods of use and periods of sobriety, and relapse is common. Right?
Well, I think the first thing to consider is when the last order was entered. If you reached an agreement regarding custody, or an order was entered resolving custody, AFTER he got sober, you likely can’t use his former drug use in court. Technically, anything that happened prior to the entry of the last order is deemed irrelevant and inadmissible in the future. If he’s sober and has been sober… Well, you may have to wait for a relapse.

You can ask for drug testing, but, if he pops positive, it’s pretty good evidence for him. Sometimes, strategically, we choose NOT to drug test a dad because his negative drug test would speak volumes, and undermine our case.

If there hasn’t been an agreement or an order, it may be worth considering your drug testing options. Some tests have a longer life than others, so even if he’s been sober for a couple of months (which a urine test would show), others can show a longer life – like fingernails or hair. You may want to try to request one of those tests specifically to show that his sobriety hasn’t really been all that long, and that additional testing may be necessary.

Can I get the judge to order that he won’t use drugs or alcohol while he has our child?

Yes, usually! We can almost always get a mutual order entered that no drugs or alcohol will be used while the child is in a parent’s care, sometimes even for a specific period BEFORE visitation is supposed to take place.

Wait, what? I thought you said mutual.

Yeah, I did. What’s good for the goose, right? I see lots of mutual restrictions, and it’s usually on drug AND alcohol use.
Chances are, if there’s a restriction made, it will apply mutually to avoid the impression of bias. After all, fair’s fair, right?
It may not seem that way. I hear moms say all the time, “You mean, I can’t have a glass of wine after my kid goes to bed?” Well, it depends on the exact wording of your order, but, yeah, usually, that’s exactly what that means.

It’s definitely a good idea to discuss your unique situation in more detail with a licensed and experienced Virginia custody attorney so that you can come up with a plan moving forward. Drug use never makes for an easy case, but if you take your time and strategize appropriately, you can make sure your child’s best interests are protected. Give us a call at 757-425-5200 for more information or to set up a consultation with one of our attorneys.