Will I Lose Custody of My Child if I Fail a Drug Test?

Ultimately, family courts use the “best interests of the child” standard when determining custody orders. This standard prioritizes the child's well-being, which includes ensuring a safe and stable environment.

This article discusses how drug abuse impacts child custody cases. Learn how the family court assesses a failed drug test, circumstances that prompt drug testing, and more.

When Does the Court Issue Drug Testing for Custody Proceedings?

There are several circumstances that can prompt a judge to order a parent to submit to a drug test during a custody battle:

• Evidence of past drug use
• The parent has received a conviction for a drug-related crime
• Reports of drug use, especially if in the presence of the child

A parent can request that the court order a drug test if they have concerns about the other parent's substance use affecting the child's well-being. They should provide supporting evidence or testimony of drug use. The court does not take false accusations lightly, and fabricated accusations used to manipulate the custody process can have serious consequences.

Any claims of drug use must be based on genuine concerns for the child's safety and supported by credible evidence.

Parental alienation, or when one parent intentionally damages the child’s relationship with the other parent, can also negatively impact custody decisions. Again, courts prioritize the well-being of the child. A judge will view unfounded attempts to undermine the other parent unfavorably.

Custody Cases and the Best Interest of the Child

A family court judge accounts for several factors when determining the best interest of the child. One of these factors is evidence of parental substance abuse or alcohol abuse. Other elements the judge will assess include:

• Parental ability to provide a safe and stable home for the child
• How likely the child is to adjust to their community and school
• Parental physical and mental health
• The child's preference, depending on their age and maturity
• Opinions of family members and mental health professionals
• Any history of domestic violence or child abuse
• Ability to co-parent and willingness of each parent to support the child’s relationship with their other parent

Courts aim to grant joint custody, recognizing it is usually in the child’s best interest to maintain a strong relationship with both parents. But this arrangement is contingent upon both parents being able to provide a safe, stable, and nurturing environment. If one parent is unable to meet these conditions due to substance abuse, addiction, or alcoholism, the court may rule that joint custody is not in the child’s best interests.

The court will consider alternative custody arrangements that protect the safety and development of the child. For example, a judge my grant sole custody of the child to one parent while the other parent receives treatment for their addiction. The other parent may have supervised visits or limited visitation rights.

Drug Treatment and Custody Determinations

How a positive drug test impacts child custody decisions depends on several factors. A key element is how committed the parent is to sobriety and providing a safe environment for their child. A family court judge will examine what the parent is doing to address their addiction, including if they are in treatment and working with a doctor, mental health professional, or substance abuse counselor. The judge will look at the parent’s efforts and success with their sobriety.

A parent actively seeking and engaging in treatment and recovery can be viewed positively by a judge—even after failing a previous drug test.

A parent can request a custody order modification after completing their drug treatment plan. This parent must provide evidence of their recovery and commitment to responsible parenting to the court.

What Type of Drug Test Does the Court Use in Custody Cases?

There are several testing methods the court may use to test for various illicit substances:

• Blood test
• Hair follicle test
• Nail clipping test
• Urinalysis

The type of test depends on the substances being tested for and the circumstances of the situation. For example, a urine test will only identify more recent drug use, usually within 48 to 72 hours. A hair follicle test can show longer-term drug use, identifying substances used within the last 90 days.

The detection window also varies depending on the drug. For example, methamphetamine can be detected for up to 48 hours with a typical urine test, whereas phenylcyclohexyl piperidine (PCP) can be detected for up to eight days after use.

Can I Refuse a Drug Test in Family Court?

A parent can refuse a court-ordered drug test, but not without consequences. A family court judge will likely view refusal to submit to drug screening as a potential indication of drug use, which will negatively impact custody decisions. This can also be contempt of court.

Keep in mind that a failed drug test doesn’t necessarily result in a loss of custody. But, the court will assess the parent’s cooperation and commitment to treatment and responsible parenting. Not complying with a drug test order suggests a parent is not ready or willing to treat a potential addiction.

Custody Consequences of a Failed Drug Screening

The outcome of a failed drug test during custody proceedings varies, ranging from supervised visits to full custody loss. The court’s primary concern will aways be the safety and well-being of the child. The extent to which the parent’s drug use affects their ability to parent will inform the custody consequences.

Other factors a family court judge will consider include:

• Severity and frequency of the drug use
• The specific type of drug or substance
• The parent’s rehabilitation and treatment efforts
• Any previous drug-related offenses or criminal history

For example, marijuana use typically doesn’t have as severe as consequences regarding child custody as a felony-level drug like cocaine, heroin, or meth.

Pharmaceutical abuse can also be a concern, especially if they impair the parent's ability to care for the child. The court will evaluate each case individually, considering all factors to prioritize the child's best interests.

Visitation Rights and Substance Abuse

You still have rights, even if a judge modifies your custody rights because of drug test results. You can petition the court for parental visitation rights, which can be granted through a court order.

If your addiction affects your ability to safely parent your child, the court may require supervised visitation or further limit your visitation.

The court may also set specific conditions, like attending rehabilitation programs or regular drug testing, to ensure the child's safety during visits. Complying with these requirements can positively influence future custody arrangements.

Need More Help? Contact a Child Custody Attorney

Testing positive for an illicit substance doesn’t mean you will lose custody of your child. But the family court takes parental drug use very seriously in custody proceedings, and you can expect a failed drug screening to impact your custody case. Consider seeking legal help from an attorney to help you understand your parental rights and what to expect moving forward.

Beyond providing valuable legal advice, a family law attorney can advocate for the best interests of your child and represent you in family court. If you are invested in sobriety and responsible parenting through counseling and treatment, your attorney can help you gather evidence and illustrate your efforts to the judge. Contact a child custody lawyer in your area to learn more.