If you are going through a divorce and have children, you may wonder how the court will decide on custody and visitation issues. One factor that can affect the outcome of your case is whether you or your spouse have a problem with drugs or alcohol.
When Can the Court Order Drug Testing?
In Massachusetts, the court does not automatically order drug testing in child custody cases. The court’s main concern is to act in the best interest of the child, which means considering the child’s health, safety, education, and emotional well-being. If one parent has a history of substance abuse, a criminal record related to drugs or alcohol, or a documented problem with addiction, the court may order drug testing to determine the extent and impact of the parent’s drug use. The Court can do this as every person who seeks custody of children automatically places their medical condition and history into controversy.
As a general rule, the court will not order drug testing based on mere allegations or suspicions. The parent who requests drug testing must provide evidence to support their claim that the other parent has a substance abuse issue that affects their parenting ability. This evidence can include:
– Police reports, arrest records, or convictions for drug-related offenses.
– Medical records, treatment records, or drug test results that show drug use or addiction.
– Testimony from witnesses who have seen or heard the parent use drugs or alcohol, such as family members, friends, neighbors, co-workers, or professionals.
– Declarations from the parent themselves admitting to drug use or addiction.
The court will weigh the evidence and decide whether drug testing is necessary and appropriate. The court will also consider the type, frequency, and duration of drug testing, as well as the consequences for failing a drug test.
What Type of Drug Testing is Used?
The most common type of drug testing used in child custody cases in Massachusetts is urine testing. Most probation offices can take the urine samples in the court house. When a judge orders a urine test, the person is usually ordered immediately to report to Probation for the test. Urine testing can detect the presence of various drugs and alcohol in the body, such as marijuana, cocaine, heroin, methamphetamine, opioids, benzodiazepines, and alcohol. Urine testing is relatively inexpensive, easy to administer, and widely available.
However, urine testing also has some limitations. Urine testing can only detect recent drug use, usually within a few days or weeks of ingestion. Urine testing can also be affected by factors such as hydration, metabolism, and medication use. Additionally, urine testing can be tampered with by diluting, substituting, or adulterating the sample.
Another type of drug testing that is sometimes used in child custody cases is hair follicle testing. Hair follicle testing can detect the presence of drugs and alcohol in the body for a longer period of time, usually up to 90 days after ingestion. Hair follicle testing is more accurate and reliable than urine testing and less prone to manipulation. The hair sample is taken at a lab and not at the court house.
However, hair follicle testing is also more expensive, invasive, and controversial than urine testing. Hair follicle testing requires cutting a small amount of hair from the scalp or other body parts. Hair follicle testing can also be affected by factors such as hair color, texture, growth rate, and cosmetic treatments.
What Happens If a Parent Fails a Drug Test?
If a parent fails a drug test in a child custody case in Massachusetts, the court may take various actions depending on the circumstances of the case. Some possible outcomes are:
– The court may order supervised visitation or limit contact between the parent and the child.
– The court may order the parent to undergo substance abuse treatment or counseling.
– The court may order the parent to submit to more frequent or random drug testing.
– The court may modify or revoke an existing custody or visitation order.
– The court may terminate parental rights if the parent poses a serious risk of harm to the child.
The court will not automatically deny custody or visitation to a parent who fails a drug test. The court will consider other factors such as:
– The type and severity of the parent’s drug use or addiction.
– The impact of the parent’s drug use or addiction on the child’s welfare.
– The parent’s willingness and ability to address their substance abuse problem.
– The parent’s compliance with court orders and treatment programs.
– The child’s age, maturity, and preferences.
The court will try to balance the child’s need for a relationship with both parents with the child’s need for safety and stability.
How Can You Protect Your Rights and Your Children’s Best Interests?
If you are involved in a child custody case in Massachusetts and you or your spouse have a problem with drugs or alcohol, you should consult with an experienced family law attorney as soon as possible. An attorney can help you:
– Gather evidence to support your claim that the other parent has a substance abuse issue that affects their parenting ability.
– Request drug testing depending on your situation and goals.
– Negotiate or litigate a custody or visitation arrangement that protects your rights and your children’s best interests.
Drug testing in child custody cases in Massachusetts can be a complex and sensitive issue. You need a skilled and compassionate advocate who can guide you through the process and fight for your rights and your children’s best interests. Contact us today to schedule a consultation and discuss your case.