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Drug Testing in California Child Custody Cases

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If you are a parent whose spouse, domestic partner, or former boyfriend or girlfriend is accusing you of substance abuse, or if you’re accusing your child’s other parent of substance abuse, you have plenty of company.

“Substance abuse is a significant public health problem for people of all ages and walks of life. Unfortunately, millions of American children live in homes with parents or caregivers who are regularly involved in alcohol or drug use, distribution, manufacturing or cultivation of illicit substances,” Christopher Bergland wrote in Psychology Today.

According to the clinical report, “Families Affected by Parental Substance Use,” the children whose parents misuse alcohol and drugs are three times more likely to be victims of physical, emotional, or sexual abuse than other kids, and their risk of neglect is four times higher than their peers.

If you are a parent and you suspect that your spouse or domestic partner has a problem with drugs or alcohol, or if your child’s other parent believes that you have a substance abuse problem, you may be wondering, “Can substance abuse impact child custody proceedings in California?” The answer is “yes” but it depends on the facts of the case.

Effects of Substance Abuse on Parenting

Drugs, including many prescription medications, and alcohol can definitely impact one’s parenting abilities in many different ways. Here are some examples:

Parenting Effects of Alcohol

  • A parent may pass out and therefore neglect their parenting responsibilities.
  • A parent under the influence may forget to feed or bathe their child, or they may forget to pick the child up from school.
  • A parent may stay out all night at a bar and leave their children home unattended due to the effects of intoxication.
  • A parent may be an “angry drunk” and abuse their children while under the influence.
  • The alcohol could lead to depressive episodes, making the environment unstable for the child.
  • The parent may drive under the influence of alcohol with the child in the vehicle, leading to a drunk driving crash and criminal charges.
  • The parent may spend their extra money on alcohol and not have enough left over to pay for groceries or rent.
  • Parents may be unable to walk and therefore leave their children unsupervised.

Parenting Effects of Drugs

  • A child’s innocent crying can be magnified while the parent is under the influence of certain drugs, such as cocaine and it can lead to child abuse.
  • The effects of a drug can cause a parent to be angry and impatient with a child for any reason. The drugs can cause the parent to have distorted thoughts and they can misperceive the child’s intent, leading to abuse.
  • A parent who is addicted to crack can leave an infant or child home alone for hours or days at a time as they leave the house to seek out the drug.
  • CPS often has to investigate cases where homes are barren of furniture because the parents sold it all to buy drugs.
  • A drug-addicted parent may not have any food in the fridge or cupboards because their habit makes them incapable of providing for the child’s basic needs.
  • Drug addicted parents can expose their children to drug dealers and in effect, very dangerous environments and situations.
  • Parents with a meth addiction may not provide their children with the proper supervision, food, medical care, shelter, and clothing.
  • The children of meth users may suffer serious consequences due to severe violence.

While the above lists may appear long, they don’t even tell half of the story. If you would like to learn more about the specific effects of alcohol and drug use on parenting, click here.

Child Custody & Drug Testing

In the family court system, it is common knowledge that a large percentage of child custody cases involve accusations of drug and alcohol abuse. In many cases, both parents will accuse each other of substance abuse.

Often, drug or alcohol abuse issues are brought to the attention of the family courts in the following: legal separations, domestic violence cases, divorces, child custody cases, mediation sessions, Child Protective Services reports, criminal prosecutions, court hearings, and pleadings and motions.

According to the California Courts: “California Family Code section 3041.5(a) allows a court in a child custody, visitation, or guardianship proceeding to order any person who is seeking custody or visitation to undergo drug or alcohol testing.

“Before ordering the test, the court must determine that the person is a habitual, frequent, or continual illegal user of controlled substances, or a habitual or continual abuser of alcohol. That finding must be supported by a preponderance of the evidence, which may include a conviction for the illegal use or possession of a controlled substance within the past five years.”

In some cases, a judge does not have any hard evidence of substance abuse. For instance, the accused parent has never been convicted of DUI, an alcohol-related offense, or a drug possession charge. All the judge has is the other parent’s accusation, which may in fact be 100% truthful. In this situation, the judge has to carefully evaluate the credibility of the accusing parent’s testimony before him or her.

Historical evidence can be very valuable to a judge, if there is any. If the accused has any history of past drug arrests or DUI, these are red flags that may indicate a substance abuse problem exists. Under Family Code Section 3041.5(a), a drug-related conviction in the past five years is evidence that can be considered when deciding if drug testing should be ordered in a child custody proceeding.

Related: What Can a Domestic Violence Restraining Order Do?

If your child custody case involves accusations of substance abuse, it’s important that you fully understand your rights under California law. We encourage you to contact our firm to schedule a free case evaluation with a Los Angeles child custody attorney.


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