Substance Abuse and Divorce in California
California courts hold the parent-child relationship sacred, as it should be. Translated to divorce terms, this means courts will generally award joint legal and physical custody to both parents in divorce and custody proceedings, with few exceptions.
One exception to the general rule favoring joint legal and physical custody is when one parent has ongoing substance abuse problems. Habitual or continual use of controlled substances or alcohol by either parent can have devastating consequences on the children.
Of course, as with any allegation of fault, the party making the claim must provide proof or risk having a claim backfire and weaken the party’s own case. If you reasonably believe your spouse has a substance abuse problem, bring the issue to your attorney’s attention immediately and discuss whether or not you should request court-ordered drug testing.
In California, section 3041.5 of the Family Law Code provides that courts may order drug and alcohol testing via urine tests in divorce cases:
In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship. ….
One vitally important note to remember is that a court will most often order drug testing of both spouses, not just one, so if you suspect your test results may indicate the presence of a controlled substance, you need to tell your attorney before drug testing is requested. Also keep in mind that test results are confidential and a spouse can be held liable for violating that confidentiality.
Another important point is that California law does not permit hair follicle testing to be ordered by a court. A party may be able to successfully object to hair follicle testing if it was ordered.
If you are successful in proving an ongoing substance abuse problem, you may be awarded full legal and physical custody, along with continued substance abuse testing of the other parent, and even supervised visitation in some cases.
Because each case is fact-specific, you should consult with an experienced family law attorney before requesting or submitting to drug and alcohol testing if at all possible. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a divorce or custody case in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
