Drug or Alcohol Use and My Virginia Custody Case
Drug or alcohol use can pose problems in a Virginia child custody case, as you can probably pretty well imagine. Judges – who are notoriously conservative, especially in Virginia, and especially when it comes to things like drug use – don’t like it. In Virginia (as in pretty much everywhere), custody cases always comes down to what’s in the best interests of the child. Is living with (or riding in a car with) a person with substance abuse issues in their best interests?
Well, it all depends. In court, it all depends on what you can PROVE. Proving drug use almost always requires the use of drug tests.
So, as you can probably imagine, this is complicated. And nerve wracking. And if you’re a user of drugs or alcohol, you probably don’t know what to expect.
You probably also know that there are a wide range of different types of drug tests (urine, saliva, hair, fingernails) that can yield different results, and can test for a lot of different substances, too.
A lot of attorneys and judges make a lot of mistakes where drugs and alcohol are concerned. Believe it or not, in general, we’re not a demographic that knows that much about these things. And we receive no formal training in law school that prepares us for the possibility (or, maybe, I should say the probability) of drug testing in our careers. That results in a lot of mistakes being made.
Judges (or attorneys or Guardians ad litem) sometimes make big mistakes, usually by asking for a test that won’t yield a positive for the drug(s) in question. When a “hair follicle” test is requested, for example, there’s some room for interpretation. A typical drug screen using hair (which doesn’t actually use the follicle, but instead the hair itself) uses a standard 7 panel test. It tests for lots of things – cocaine, marijuana, amphetamines, etc – but it’s not a completely comprehensive test.
You can use hair for a drug test and also do it more comprehensively – which is definitely something you’d want to know if your child’s father were the one that you suspected of drug use, especially if you suspected that he was using something outside of that standard panel of tests associated with a drug test on hair.
The length of time that a particular drug stays in your system is also relevant. Some tests are more immediate than others. With urine, for example, most drugs stay in the system for 3-4 days. (Marijuana, of course, is different, and, with regular use, can be in your system for 3-4 weeks!) It’s also easier to cheat on a urine test than other types of tests. (Though, you should note that this is NOT a piece on how to cheat your drug test!) While you may be clean on a urine test, a test using your hair or your fingernails might tell a different story.
Uhhh…. I can’t take a drug test!
Yeah, I know. But, if drug use is suspected, you may very well have to, and that’s something you should prepare for now. A couple tips, though…
1. Be honest with your attorney about your drug and alcohol use.
Simply put, we just can’t prepare for what we don’t know about. Whatever the truth is, tell your attorney. We can often prepare an argument or ask for a different type of test to be performed.
Judges and attorneys aren’t that knowledgeable about these things, in general. I said that before. What’s popular in court is to order a “hair follicle” test, which, like I said, generally means that standard panel of tests.
Hair follicles tend to show drug use for a pretty long period of time. If you’ve quit using, though, there are a couple of things we can do. If you’ve been sober for a month or two, let both your attorney and the person doing the drug testing know. A smaller sample of hair can be taken of the newest hair closest to the base of your scalp, which may show a lower concentration of drugs in your system. It could also potentially come out clean, depending on the length of your sobriety.
Not only that, but your attorney could also have another type of drug test performed – one that determines sobriety for a shorter period of time – that you could ALSO use in court. Say you used to use, and you used in the last six months, but for the last four or five you haven’t. If you’re presenting that evidence to the court, you may fail, say, your fingernail drug test. But you could also have another type of test performed to show that you have been sober for those four or five months, and that you’re trying to get things back on track.
Is it perfect? No. But it definitely helps to show some progress! And it’s hard to have this evidence, and be prepared for this kind of situation, without being honest with your attorney.
Most of the time, judges don’t want to keep kids from their parents. The judge WANTS to give you a chance, especially if you’re making progress. It’s good for you, but, most importantly, its good for the child to have two involved parents. Even if you have used drugs, all is not yet lost.
2. Get clean. NOW.
Obviously, it’s not enough to get clean before the hearing and then start using again. You really do need to make a specific, concerted effort to get and stay clean. After all, your child depends on it!
The longer the period of sobriety before your case goes to court, the better.
The best part of all of this? It’s hard to have truly “random” drug tests. Drug testing is usually on or around your court date, so you have some advance notice to start getting sober before you’ll be tested. Later on, there could be more random tests, but you’ll want to be prepared as possible. If you’re served with any kind of notice of an upcoming court date, immediately stop your drug usage.
Go to rehab if necessary. Get help from an addiction counselor. Do what you need to do to get and stay sober. (The judge won’t hold getting help against you; he or she will hold your continued drug use, or continued relapses, against you.)
3. You may be subjected to random drug tests later on – be prepared.
After your case begins, there may be more than one follow up test. It’s kind of like stepping on the scale when you’re trying to lose weight; knowing that you’ll be tested (whether randomly or on a specific schedule) can go a long way towards helping someone maintain sobriety.
Especially in cases where custody is concerned, repeat tests are often ordered. It’s a pretty well established fact that drug users tend to relapse, so it makes sense that the court would continue to test you – especially while you’re undergoing stressful custody litigation – to make sure that you’ve stayed clean.
So, yeah, it would definitely be in your best interests to stay clean!
Look, if you’ve used drugs, that doesn’t mean you’re a bad person. We’ve all made bad choices when we’ve been in a bad place in our life, stressed out, or overwhelmed. But, if you have an upcoming custody case, you can bet that those choices will be scrutinized much, much more carefully than otherwise. If you have any notice at all of these proceedings (which you will – that’s how this works!) you have time to get at least partially sober. You can get in a couple of good, clean months, and if you’re honest with your attorney you can help demonstrate that evidence to the court.
You’re a good mom. You’re asking the right questions. You can get help through your drug addiction and kick it to the curb permanently! After all, what better reason exists than for the sake of your child?
For more information, or to talk to one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.