Drug and alcohol abuse is an issue that comes up all the time in custody cases. Sometimes, it’s nothing but an embittered former partner making nasty allegations in order to bolster their own case. Sometimes, it’s more than that. And, when you feel like your child’s father has a problem (or, worse, you know for a fact that he has a problem), you probably feel that you owe it to your child to at least look into these allegations.
After all, if he has parenting time with the child, he may have to put her in his car and drive her places. At the very least, you’ll want to be sure he’s not using while she’s in his car, like after she goes to bed, or immediately preceding his parenting time. After all, studies have shown that, even 24 hours AFTER a someone’s high (on marijuana), they can still be impaired, even though they generally indicate that they feel fine, normal, and ready to carry on with their normal activities.
Your child is precious, and you want to protect her. So, how do you ask for drug testing in a custody case?
It’s pretty easy, in most cases. If there are serious concerns about drug or alcohol abuse, judges and Guardians ad litem are pretty good about asking for these tests to take place. It doesn’t happen all that often (because not that many cases are drug and/or alcohol related), but it happens.
The biggest problem is that judges and guardians ad litem are often not all that knowledgeable about drug testing. Sometimes, individual attorneys don’t have that much power over what type of test gets ordered, but, under the right circumstances, we can ask for specific testing – and, sometimes, the judge will listen.
The problem is that tests will sometimes be ordered, but judges are vague about what is ordered, or they don’t specify what drugs should be tested for. Heck, maybe you don’t even know yourself. In general, we see a “hair follicle” test ordered. There’s not actually a hair follicle test; it’s not the follicle itself being tested. It’s the hair. But, anyway – it’s more important than the semantics of what you call the test.
A typical hair test involves a 7 panel test for specific drugs. It’s a standard test, and one that is very often used. There’s a much, much more extensive 17 panel test – which, depending on the drugs you suspect him of using – might be something you need in your case.
Not only that, but a hair test is generally one that tests for drugs that have been in a person’s system for a pretty long time. If he’s alleging that he’s been sober for the last couple of months, there’s a chance that the hair won’t show it – because often evidence of drug use lingers in a person’s hair for longer than a month or two. (Though it varies person by person, and even by hair color!)
The best thing you can do is to be specific about what you want to test for, and how you want to test. If you talk to your attorney about your fears or suspicions, we can be more prepared for the hearing.
Does marijuana matter?
I’ve heard such a wide range of things about marijuana usage. I have heard, on at least one occasion, that a judge said to one of our attorneys, “Well, what happens in Vegas,” about someone’s marijuana usage.
Mostly, though, drugs do matter. After all, marijuana is illegal. It’s also a bit of a gateway drug. If you present the judge with evidence (as in, a positive drug test) that your child’s father is doing illegal drugs, especially on a regular basis (yes, drug tests can tell how OFTEN you use!), it would be very, very hard evidence to ignore.
Can I ask for repeat tests, or test him at home before he takes our child?
A lot of times, there ARE repeat tests, especially if he’s popped positive once. After all, like stepping on the scale keeps you accountable when you’re losing weight, knowing that drug tests could be coming (especially drug tests where we determine whether or not a person can see their child) is a strong motivator for sobriety.
Repeat tests are possible. It’s also possible that you could, for example, use a saliva test at home. They’re pretty accurate, and can be done instantly. At about $10 a pop, you could keep them on hand and use them (if the judge orders or if he agrees) before you child can be picked up for parenting time.
Will I be drug tested, too?
What’s good for the goose, right? Before you make a big issue of his drug or alcohol use, make sure you’re clean, too!
There are some pretty alarming facts about testing for alcohol use these days. It’s easier than ever (especially using fingernails!) to determine whether a person is binge drinking frequently. If you often get wine drunk on a Friday night, or if you’ve consumed a margarita three or four times in the couple of months (a typical jumbo margarita is 4-5 drinks worth of booze!), there’s a chance that your score on a test for alcohol could be…well, pretty high. Scary, right?
Does that all amount to an alcohol problem? Maybe not, but, as far as the judge is concerned, it could look that way. If you’re going to ask for this for your child’s father, you should be beyond reproach yourself. If you drink a regular sized drink (that’s one shot, or 5 oz of wine, or a single beer or malt beverage) an hour, you should be okay. It’s binge drinking – and, more specifically, repeated binge drinking – that is problematic.
Of course, that’s also assuming that the drug test that the judge orders (which, probably, would be a hair “follicle” test) will test for that sort of thing. A regular ol’ drug test using hair won’t show your alcohol use; like I said, it’s that regular 7 panel test, and it only tests for drugs. A fingernail test, though, would show your alcohol usage. Those are typically more rare, since it’s still fairly new technology, but may be worth considering. At this stage, it’s probably all worth considering — because if you’re really concerned about your child’s father’s drug usage, we’ve got to figure out how to get that evidence, or, at the very least, scare him into sobriety so that your child’s welfare isn’t endangered when she’s in his care.
If this is part of your custody case strategy, it’s a good idea to talk to an attorney. Figure out your strategy moving forward, clear up any potential drug or alcohol issues you might have, and THEN move forward. Having an attorney who is knowledgeable about these things can be crucial to your success! For more information, or to schedule an appointment with our licensed and experienced Virginia custody attorneys, give our office a call at 757-425-5200.