by Kelly McClure and Robert Epstein
Many high-conflict child custody cases involve an allegation of at least one of the parents abusing drugs and/or alcohol. When a party in a child custody case alleges that the other parent or conservator has a substance abuse problem, courts will oftentimes order drug and/or alcohol testing, depending on the evidence presented. If the test results show illicit or unprescribed drugs in the system or evidence of excessive alcohol consumption, the impact on that party’s child custody case could be significant.
There are many ways courts can order parties to submit to drug and alcohol testing. Courts can order both drug and alcohol testing by way of urine screens, hair tests (head or body), and nail tests (finger or toe). In addition to the above methods, courts can order alcohol screening by breath testing (e.g., Soberlink) and/or blood testing. There are also different panels for drug testing, ranging from 5-panel testing (cocaine, amphetamines, opiates, PCP, marijuana) as the smallest panel to 17-panel testing (which includes extended opiates) as the largest panel. The larger the panel, the more expensive the test, so if the substance at issue, for example, is cocaine or marijuana, a simple 5-panel test should be sufficient to screen for those drugs.
The method of testing is important to consider for purposes of identifying specifically when the party used the substance. Urinalysis generally has only a short window of time for detection of a substance; however, its advantage is that it will show if there is any recent use. Hair testing provides for a longer period of drug detection with body hair providing a longer period of detection than head hair. The disadvantage of hair testing, on the other hand, is the fact that it will not detect substance use that occurred during the approximate two-week period prior to collection (since the hair needs time to grow after the substance is used). Nail drug testing provides for the longest period of detection with toenail testing providing a longer period of detection than fingernail testing. Amazingly, toenail testing has the potential to show drug use as far back as one year. Like hair testing, however, its disadvantage is the fact that it will not detect substance use that occurred during the approximate two-week period prior to collection (since the nail needs time to grow after the substance is used).
Evidence of a positive test for illegal/unprescribed drugs or a test that demonstrates chronic alcohol use or binge drinking could and oftentimes does result in unfavorable orders from the court with respect to child custody issues for that party. The other parent or conservator could be appointed sole managing conservator of the child(ren) on at least a temporary basis (assuming the other parent or conservator is clean and sober). The party who tests positive is also likely to have his or her time with the child(ren) supervised by order of the court, depending on the substance for which the party tested positive, among other factors. If there is evidence of chronic alcohol use or binge drinking by a party, then that party could be ordered to submit to alcohol monitoring through Soberlink, which is a portable breathalyzer, during his or periods of possession with the child(ren).
All is not lost though. Many courts believe in second chances, and the road to recovery, while neither easy nor soft, is the path for which a party with a positive drug/alcohol test oftentimes does well to take. Dallas offers an abundance of options for recovery, including but not limited to a variety of chemical dependency specialists and counselors, along with meetings for 12-step programs happening in various neighbors throughout the city on any given day. If help is needed, help is available, and there are few, if any, worthier causes for self-improvement than one’s own child(ren). If certain rights and powers of being a conservator are suspended and/or if supervised possession is ordered by the court, those orders can, and frequently do, modify after the party with a positive test proves a history or pattern of sobriety. Change is possible. It can happen if one works for it.
Kelly McClure is CEO and Managing Partner of McClure Law Group, PC, and Robert Epstein is a partner at the firm. They can be reached at email@example.com and firstname.lastname@example.org, respectively.