Drug/Alcohol Testing and California Custody and Visitation Decisions

When you go to court in a custody or visitation matter, there are a variety of options available to the judge in your case. As a recent ruling from the Second District Court of Appeal demonstrates, one component of your custody or visitation order may involve making drug screening a condition of custody or visitation if one of the parents has a history of drug or alcohol abuse. What’s more, the law covering this testing says that the court can make the parent continue getting tested for as long as the court deems appropriate.

This ruling arose from a custody case that began after police discovered a mother in a public park who was drunk and high on drugs. The mother was holding her 17-month-old child at the time. The Los Angeles County Department of Child and Family Services investigated, and a juvenile court awarded sole legal and physical custody of the child to the father. The court granted the mother supervised visitation.

Shortly thereafter, the mother returned to court, seeking a modification of the custody and visitation order. While the court found that the mother’s improved condition was a sufficiently substantial change in circumstances that allowed it to change the custody and visitation plan, the court concluded that the child should remain with the father. The mother, however, received increased visitation, including unsupervised visits. As a condition of receiving further visitation, the court ordered the mother to undergo additional testing for the abuse of alcohol or drugs. The mother decided to appeal this order. Among other things, the mother challenged the drug/alcohol testing requirement. She argued that, by making this additional testing a condition of further visitation, the trial court violated Family Code Section 3041.5.

The claim that this testing requirement violated Section 3041.5 was something new that had never come before the appeals court before. Section 3041.5 gives courts the authority to demand that a person seeking custody or visitation undergo drug or alcohol testing if the judge finds that the person seeking custody or visitation has engaged in “the habitual, frequent, or continual” use of illegal drugs or the abuse of alcohol. The crux of the mother’s argument was that the trial judge never made the necessary findings regarding her “habitual, frequent, or continual” drug or alcohol abuse, as required to trigger the forced testing.

In this case, the appeals court decided that the trial court had enough evidence to satisfy the statute and order the mother to undergo testing. In a 2012 hearing, the lower court concluded that the mother had a drug and alcohol problem that led to her arrest in the park. Also, a doctor testified at that hearing that the mother had an addiction to prescription drugs and a pattern of abusing them. Those findings from that 2012 hearing were exactly the sort of “judicial determination based upon a preponderance of evidence” required by the statute to allow the court to order testing.

Another important aspect of this decision related to whether the trial court had the statutory authority to order the sort of open-ended testing it demanded of this mother. Section 3041.5 has no language in it stating that courts can only demand testing for a certain maximum duration of time. Other statutes in the Family Code contain time limits. As one example, the court pointed to Section 3190’s authorization of court-ordered outpatient counseling, which has a cap of a maximum of one year. If the Legislature had wanted to prohibit open-ended testing, it would have written a time limit into Section 3041.5, just as it did in Section 3190, the appeals court reasoned. In short, Section 3041.5 gives courts the power to require drug/alcohol testing for any length of time the judge considers appropriate.

Judges have wide discretion in how they construct custody and visitation orders. Obtaining a fair custody and visitation order is an essential part of protecting the best interests of your child and your role in that child’s life, which is why getting experienced counsel on your side is so important. The hardworking San Diego child custody attorneys at Doppelt and Forney, APLC  have assisted many clients throughout Southern California, including in San Diego, Encinitas, La Jolla, and Chula Vista, with seeking out an appropriate outcome in their custody and visitation case. For a free consultation, reach out to Doppelt and Forney, APLC through our website or call toll-free at (800) ROY IS IT (769-4748).

More blog posts:

California Court Considers Alleged Change of Circumstances In Request for Child Custody Modification, San Diego Divorce Lawyer Blog, July 19, 2016

California Court Grants Father’s Motion to Modify Custody Order, San Diego Divorce Lawyer Blog, Sept. 29, 2015

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