Drug Testing and Child Custody: How To File A Motion For Drug Testing?

Drug Testing and Child Custody: How To File A Motion For Drug Testing?


Drug testing is the process of performing laboratory tests to detect and measure the presence of illicit drugs and sometimes medication in a person's body. Drug testing is carried out by analyzing one or more samples of blood, urine, hair, saliva, or sweat and measuring the levels of drug metabolites therein.

This article explores the question of how to file a motion for drug testing in your custody case. It discusses what factors are considered in determining whether a party is fit to be a custodial parent, how drugs can impact child custody proceedings, and why drug testing is essential.

Table of Contents:


What is Drug Testing?

Drug testing collects samples and analyzes them to determine if they have used a particular substance. Drug testing may occur in the workplace when it's done on an individual basis, or it may be a requirement for all employees.

Drug testing can be a part of pre-employment substance abuse screening, or more frequently, a random drug test. Alternatively, drug testing may occur as part of an organizational wellness program.

The goal of all these different types of drug testing is the same: to ensure that people are not impaired on the job, and that work is done safely and without impairment.

How is Drug Testing Done?

Drug testing can be done by sampling various bodily fluids such as urine, blood, hair, or saliva. A sample will then be tested for drug concentration to determine if any illicit substances have been used within a set period.

Drugs such as cocaine, amphetamine, opiate, and MMJ are monitored closely due to their prevalence and the damaging effects on the body's health. False positives could occur when a patient takes prescribed medications containing an element similar to one of the illicit substances.

Drug Testing Can Be Performed In The Following Ways:

  • Saliva Drug Testing: Saliva drug testing is done using the oral swab test method. Test results are typically available within minutes. The detection time for drug use is usually longer than urine testing.
  • Blood Drug Testing: A needle is inserted into a person's vein to test the blood for drugs and alcohol. Depending on the drug being tested for, blood tests may be more invasive and difficult to take than urine or oral fluid tests. Blood tests are more accurate than the others and can be used to test for much longer amounts of time.
  • Urine Drug Testing: Urine can be tested in a variety of different ways. A sample is usually collected with a particular collection device and then tested using a urinalysis test. This test is often the most invasive in how many examinations it requires to complete the analysis. It can be used for testing most illicit drugs but not all prescription medications.
  • Hair Follicle: Another method of drug testing is to perform an analysis of the hair follicle. Drug use in the months or years before the test can be determined by evaluating the hair shaft.

The detection time for this method is quite long, and it may not distinguish between drugs and medication.

What is Drug Testing Used For?

Drug testing is performed to discover whether drugs are present in an individual's body. It is used in the workplace to identify recreational or performance-enhancing drugs users, which may be grounds for termination.

Drug testing can also be performed on a person suspected of using illicit drugs or alcohol while driving a car. Drug testing is a routine law enforcement procedure. If a person is suspected of using drugs, they may be asked to submit to drug testing as an extra step before being allowed to leave the premises.

Who Is Tested?

Drug testing is typically performed in the workplace on individuals suspected of drug use, but it can also be done at all levels of government and by some private employers. While most are performed on employees, it may also be done on citizens suspected of using illegal substances. Employees are subject to frequent drug testing as a condition of employment or to satisfy state laws prohibiting employees from using specific drugs. Alleged addicts who are required to pass a drug test as part of a rehabilitation program may also be tested by their employer.

How Much Does Drug Testing Cost?

Drug testing costs vary greatly depending on the type of test being done, the number of times it must be done, and the frequency with which it must be repeated. An essential screening may cost as little as $50 for a private employer with 20 employees or less.

However, some companies pay upwards of $100 per employee for this test. State governments may test a driver or applicant for licensing or a state license. The state may ask its employees to furnish urine specimens periodically, and the cost may run between $0 and $100 per year.


Drug abuse is a common and tragic problem, and drug and alcohol use play an important role in many divorce cases. If you are getting divorced and you believe your spouse has a drug problem, it is essential to address those concerns before putting your children at risk.

The court does not require drug and alcohol tests under normal circumstances. In most cases, a parent must request this; however, the court will not allow this request unless the petitioner can provide evidence of the spouse's drug problem.

If the spouse has a history of illicit drug use or an alcohol-related criminal record, it is a "preponderance of evidence" indicated as proof.

In custody cases, allegations of drug or alcohol abuse are crucial. A court can deny custody of a parent accused of drug or alcohol abuse, or that parent can only have supervised visits.

Because drug or alcohol abuse allegations are taken so seriously, it is often not enough to tell the court that your ex-spouse or significant other has abused these substances a drug test and show that you can care for a child.

How to Get A Drug Test Ordered?

If you think your partner abuses drugs or alcohol, you can ask your lawyer to file a court application for a drug test. These tests can test urine, blood, or hair, depending on the judge's preferences and court standards.

A hearing will take place after the application has been submitted. At this hearing, the judge listens to the arguments of both parents and decides whether the drug test is appropriate. Sometimes a judge orders that both parents take a drug test.

While the custody process is ongoing, this is particularly common when one parent has a criminal record for substance abuse or when each parent accuses the other of neglect or abuse related to drugs or alcohol.

In other cases, one parent may need to report the other's substance abuse to the court. Sometimes allegations of drug or alcohol abuse are enough for a judge to order a drug test without further evidence. In other cases, a parent may need to provide proof of substance abuse to the court, such as:

One should never falsely accuse each other of having a drug problem to limit custody or visitation. Family judges take false allegations very seriously, and unsubstantiated allegations often backfire.

What happens if they fail a drug test?

If an individual fails a court-ordered drug test, the consequences will vary depending on the test result. Some tests, such as urinalysis tests, only show recent drug or alcohol use. Show drug use in recent months.

A parent who tested positive for using hard drugs such as 6-MAM will be judged differently than a parent who tested positive for only a small amount of alcohol. Depending on what the drug test shows, the court may take different types of action.

First, the refusing parent can be directed to take drug or alcohol treatment classes and general parenting classes. Successful completion of these courses shows the court that the parents are trying to create a better environment for the child.

In addition, the parent can be prescribed a second drug test after 60 or 90 days. If this test is clean, it shows that the father is making changes in his life. With drugs and alcohol, this parent may have difficulty obtaining custody or additional visiting rights for the child.

What if you decline a court-ordered drug test?

If a party fails a court-ordered drug test, the court may deny custody of the child. However, the courts are not interested in severing all ties between the child and the parents to keep some access rights.

However, if the party doesn't even take the drug test (instead of taking it and not getting the result), they may lose all parental rights to their child (e.g., physical and legal custody) result in jail time for that party.

In general, a party who refuses to undergo a court-ordered drug test will face serious legal consequences. It applies to all cases, not just to custody disputes. However, if a children's welfare organization requests a drug test, the party can refuse to do so if the court allows it.

What happens to the custody determination in case of failing a drug test?

As per the case, the court may grant a parent to regain some of their rights or have their custody changed in the future by creating a treatment plan and regularly accepting drug tests.

The cases become difficult when both parents are deemed unable to raise or have custody of a child. If both parties cannot raise the child due to regular drug use, the court can withdraw custody and award it to a third party.


Step 1: Find the right attorney

The first step to file a motion for drug testing is to find the right attorney. Many attorneys' offices advertise on TV, radio, and billboards, but it's best to do some research online before calling an attorney's office to discuss your case.

Your local phone book also contains listings of attorneys and law firms that specialize in drug testing cases. Finding an individual attorney who has experience handling drug testing cases is also a good starting point.

Step 2: Create your document

The second step is to create a motion for drug testing that outlines your case (the facts and what you want) and clearly states why you need drug testing.

The tone of the motion will be crucial, as it will set the judge's expectations about how they should decide whether to grant your request for drug testing.

Remember that judges are much more likely to approve a motion if it's well-written and researched.

Step 3: Have your lawyer send it to the correct court

The third step is to have your attorney send the motion for drug testing to the proper court in your jurisdiction. Every state has its laws regarding child custody, and every set of rules is different.

Your local court will have more information about the types of cases and laws that apply there, as will your state's website.

Step 4: Get a response

The fourth step is to get a response from the court. The judge's response will let you know if your motion for drug testing has been accepted, denied or if it needs to be amended before the court can take it.

There may be situations where it makes sense to amend the motion for it to comply with local laws and rules of the court.

Step 5: If the motion is granted, get ready to take a test

The fifth step is to prepare for the test if the motion for drug testing has been granted. Not every type of drug test requires that you purchase all the necessary equipment from a lab.

In many cases, you can purchase any number of items from a local store and be prepared to provide them when it's time for you to comply with the judge's order for drug testing.

Step 6: Test

The next step in filing a motion for drug testing is to provide the court with the test results. The judge may require the results from one type of test or several different types of tests.

It's essential to follow the instructions provided with your drug testing kit to ensure that you pass your test on time.

Step 7: Pay attention to your case

The final step in filing a motion for drug testing is to pay attention to your case. You'll need to be involved in any court hearings or mediation sessions that involve your custody dispute if you want to protect your rights as much as possible.

Most cases will go on for months or even years before being resolved. When you hear new development news in your case, it's essential to be prepared for what comes next.

Consequences of filing a motion for drug test:

Filing a motion for a drug test is a big decision. Before making this decision, it's essential to consider the potential consequences of doing so.

If your motion for drug testing is granted, you may have trouble obtaining basic needs such as housing or employment, and your child might suffer as a result. A positive drug test will also make it more challenging to fight for custody in court or win more visitation time with their child.

If another family member files a motion for drug testing, it can create a lot of tension in the house and strain your relationships with other family members.


1. What happens if both parents refuse to undergo a drug test?

It's assumed that both parents cannot raise the child, and each will be awarded custody of the child by default.

2. What is a "pass" for a drug test?

A pass is any result that shows that one doesn't have a measurable amount of illegal drugs in their system.

3. What is a "fail" for a drug test?

A fail is a result that shows one does have drugs in their system. Typically, a fail is associated with illegally obtained prescription drugs (i.e., Oxycontin, Vicodin, etc.), opiates, or foreign drugs (i.e., methamphetamines).

4. What are the most common drug testing procedures used in U.S. courts?

U.S. courts mainly use urine, hair, and saliva tests for drug testing purposes.

5. How long will it take for a judge to grant a motion for drug testing?

It depends on the type of case, but often there is no delay. If the court has to look into new evidence or allegations that have come up, it can delay a decision, but if the motion conforms to all local laws and rules of procedure, it can usually be granted right away.

A qualified attorney will help you file a motion for drug testing in your state.

6. How long do most drug tests take?

Most drug tests can be completed in a day or so, but some take weeks to complete (hair). 7. What is the level of accuracy for drug testing?

Drug testing can be very accurate, provided that the procedure has been followed correctly. There are different types of tests for various drugs, and thus some are more accurate than others.

8. How long do drugs stay in the body after consumption?

It depends on the drug; it's hard to say how long a particular drug stays in one's system after consumption.

9. How do investigators prove that a parent has been using illegal drugs?

They have some form of evidence, including the child's teacher or medical or social services records. There are cases where a private investigator is hired to follow one of the parents and record their activities.


The fact that there is such a tremendous demand for drug testing of parents makes the performing of it very important. No parent wants their child to be placed into the hands of a drug-addled parent, which is why it is imperative to protect your rights to seek drug testing.

This document has given you a rundown on when and how to file a motion for drug testing and potential consequences. If you have any additional questions or you need help with a motion for drug testing, you must contact a qualified attorney in your area.

No child custody case is straightforward, but when drugs enter the picture, there are even more variables that come into play. If substance abuse issues arise during custody or divorce proceedings, it's essential to act quickly to protect your rights and those of your children.

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