Will I Lose Custody If I Fail The Drug Test?

Will I Lose Custody If I Fail The Drug Test?


Perhaps, yes. If you fail a court-ordered drug test, the parental rights for custody of the child will be denied, but allow you to visit the child.

To be precise, if one parent is proven guilty of drug abuse, the court may remove that particular parent's custodial right based on the prevailing situation. If both parents are chronic drug users, the court deems them unfit for parenting and provides temporary custody to a third party (in most cases - grandparents or close friends).

Drug testing is one of the factors used to make decisions in child custody disputes. The results will help the court decision regarding granting custody to the parent who may provide the safest environment for their child.

custody drug test

Table of Contents

Drug Testing and Child Custody

When parents separate, things get awkward when it comes to the custody of the children. To gain full custody, one parent starts accusing the other of unsavory behavior. Whether the incrimination is true or not, the parent who faces allegations of drug abuse may have to undergo drug testing to gain custodial rights.

According to the Family Law Act of 1995, the family court should act in the child's best interest and call for a drug test for both the parents, even if one of them is accused.

The court would recommend unannounced follow-up drug testing to confirm child custody if they discover one or both parents to have a history of drug abuse. In the meantime, the parents would lose their child's custody and get scheduled visitation rights as per the judge's approval.

Procedures followed in a court-ordered drug test in a child custody case:

  1. Initially, the partner/spouse files a motion with the attorney's help to request the divorcing partner for drug testing during a child custody case.
  2. The court will ask the moving party for a drug test as well, and both would share the cost of testing.
  3. The moving party should submit a declaration of drug abuse by the partner that might include every incident of such behavior that the party or other family members might have witnessed.
  4. The motion would be more effective if it includes the testimonials of such behavior by third parties like friends, neighbors, etc.
  5. False accusations over the former partner would likely attract fines, stringent visitation rights, and permanent loss of child custody.

Why Is A Court-Ordered Drug Test Mandatory For A Child Custody Case?

The court-ordered drug test helps the judge confirm the custodial incapacity accusation on either or both parents. That being said, the court will have a clear vision of determining the child's custodial rights based on the drug test results.

When the court identifies the child's best interest and well-being are in question, it has complete authority to run analysis over the child's parents, their health and conduct, financial independence, including assets (both tangible and intangible), and the child's preference or attachment to any one of the parents.

The court would order a mandatory drug test to confirm the accusation based on child abuse information due to the parents' record of drugs or witness deposition. It helps the court to determine the custodial rights of the parents. It would help if you understood that the drug test results alone might not be a deciding factor as the judgment might differ based on the child's preference and the prevailing situation.

What Does The Court Look For In A Child Custody Case?

According to the Family Law Act of 1975 (amended in 1995), the court is entitled to facilitate the child's best interests and ensure any parental order is consistent with any family violence order and not expose a person to an unacceptable risk of family violence. It means the family court prioritizes the child's emotional and physical well-being and interests, thereby satisfying both their short-term and long-term needs. The family court ensures that the partner's divorce or drug abuse should never threaten the child's future.

Child Custody Laws In Texas

The child custody laws in Texas are different from those in other American states.

  1. The court will consider the case only if Texas is the home state of the child.
  2. If the child is a minor, then the parent might have to provide the names of the people they have lived with for five years. If the child is less than five years of age, it isn't necessary to provide names.
  3. As per the Texas Family Code Section 152.202, the child custody verdict in Texas can get modified from their initial custody decision. They can modify until the child attains the age of 18 and conveys its decision.
  4. According to the Texas Family Code, the parents are considered joint managing conservators. The court would decide the primary conservator (custodial parent) as per the child's interests.
  5. The possessory conservator (non-custodial parent) would be given an ordered visitation schedule as per the child and primary conservator's wish. If both the parents were deemed to be fit, the primary conservatorship would be decided by the court based on the child's interests.

A Child's Ideal Age To Give Its Opinion During Child Custody Case

According to the California State of Law, a child's preference would be adhered to legally when they are above 18 years. But the judge may lend ears to the child's opinion irrespective of their age, making sure that they have clarity of making preferences based on their interests.

It does not mean that the judge should blindly follow the child's choice. Generally, a child would be allowed to be present and testify in court if he/she is older or particularly mature.

Drug Testing Methods In A Child Custody Case

The drug testing method in child custody cases is determined as per the judge's preference, in which the decision is based on the court's standards. Generally, the court would conduct urine and mouth swab tests for drugs and alcohol tests for the parents. Hair drug tests may not be required by the court even though they can predict the presence of drug intake before two to three months.

What Happens If I Fail A Drug Test In A Child Custody Case?

If a parent fails a court-ordered drug test, the consequences will vary based on certain factors like test result details, situational factors, financial status, etc. The judgment may also differ based on the intensity of the drug/alcohol consumption. For instance, the judgment for a recent or past drug abuser would be different from that of the judgment given to the individual who tested positive for a small amount of drug/alcohol intake.

Actions Considered If You Fail A Drug Test For Child Custody

  1. You would be called for an emergency order hearing and should comply with supervised custody.
  2. If your drug intake is higher, you might be directed to a rehabilitation center and asked to take drug/alcohol treatment classes and parenting classes.
  3. Your successful completion of these classes would indicate to the court that you are sober enough to gain back your child custody rights.
  4. You will be entitled to follow-up drug tests to determine drug/alcohol abstinence.
  5. If you fail any one of the follow-up drug tests, then there might be further custodial prevention measures, and you would be facing strict visitation rights directed by the court.

It should be noted that the positive results in drug and alcohol tests do not mean that the parent loses the exclusive right over the child. The court will give the child visitation rights based on the child's preferences and the primary custodian. Failing to follow the court's custodian and visitation rights would result in "Contempt of Court" and be considered a crime.

Final Words

Drug abuse has been a major problem in the United States. In that case, losing your rights in a child custody case due to drug abuse affects not only your personal and professional life but also your child the same way, though the court acts in the "best interests of your child." It would be beneficial if you prohibit your drug intake and let yourself decide about the safety and well-being of your child.

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