Keith B. Schulefand, Esq.
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Drug testing in divorce and custody cases

It is important to remember that addiction is a disease and not a matter of will or character. Nevertheless, an addicted spouse and parent can destroy a marriage and prove to be an unreliable or unstable force in raising children. Therefore, a spouse may want to request that a drug and alcohol test be administered during the divorce process or if there needs to be a modification of the parenting plan.

The New York Family Court can order a mandatory drug testing where the results are sent to the court and counsel. However, the courts expect some prior evidence to merit a test, such as a DUI or a documented history of drug abuse (although, a history of seeking help can work in the addict’s favor). If the judge sees the request as a flimsy allegation with no real basis in fact, they are likely to consider it harassment of the other side and a waste of the court’s time. If one party requests testing, the judge may also order testing for both parents.

How the testing works

New York judges will often request urine tests and hair follicle tests:

  • Urine test: Similar to drug testing in the workplace, the subject will have to urinate into a cup and then present it to an employee of a drug testing company, who also attempts to ascertain that the sample has not been tampered with before submitting it for testing. Typically, this is accurate for drug or alcohol use within the last seven days.
  • Hair follicle test: A small amount of hair is taken from any part of the body. Toxicological analysis of a follicle gives an accurate reading if there has been drug use in the last 90 days.

Results can impact a judges decision

Different states have different guidelines. New York’s are fairly aggressive with the results directly influencing the judgment of the court. The court’s primary interest is the best interests of the children, so a positive test of alcohol, prescription or illegal drugs will likely affect the custody award and visitation rights. It can also affect maintenance payments.

Attorneys can be a huge asset in protect their client’s rights as both an individual and as parent. They work to ensure that tests are accurate and can appeal a positive result when necessary. They can also draft a drug testing agreement if there is concern about the ongoing sobriety of a parent who has sought help.

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