What To Do If You Test Positive for Drugs in a Custody Case

Drug Tests in New York Custody Cases: A Family Law Perspective

Divorce and child custody disputes are often emotionally charged and complicated by numerous competing factors. When substance use is part of the equation, the situation frequently escalates drastically. In custody litigation, New York Family Courts prioritize the child’s best interests, and any indication of drug use can significantly impact custody and visitation arrangements. The issue of a positive drug test in a custody case and the proper strategy to litigate the case going forward requires careful analysis and expert advice.

Drug Testing in Child Custody Cases: What to Expect

Parties will often request a drug test of their ex during a custody case. In New York divorces and Family Court cases, the Court has the authority to order drug testing if there’s belief or suspicion that a parent’s substance use endangers the child’s well-being. Drug testing in child custody cases is often ordered when there are:

• Allegations of drug use: One parent accuses the other of drug use, and provides some evidence to support the claim. This could include testimony from witnesses, reports from teachers or other professionals, or even social media posts.
• Evidence of drug-related incidents: There is evidence of drug-related incidents, such as a DUI arrest, a drug overdose, or a child protective services investigation.
• History of drug abuse: The parent has a history of drug abuse, even if there is no current evidence of use.
• Erratic behavior: A parent’s bizarre or dangerous behaviors may cause the Court to order a drug test.

It’s important to note that the court will not automatically order a drug test just because one parent makes an accusation. It is also important to keep in mind:

• Both parents may be tested: If the court orders one parent to be drug tested, it may also order the other parent to be tested as well. This is to ensure fairness and prevent one parent from using drug testing as a weapon against the other.
• Refusing a drug test can have consequences: If a parent refuses to take a court-ordered drug test, the court may draw a negative inference from this refusal. This could lead to the parent being denied custody or visitation.
• Drug testing is just one factor: A positive drug test is not automatically disqualifying. The court will consider all relevant factors, including the parent’s history of drug use, their current efforts to address any substance abuse issues, and the impact of their drug use on the child.

While the type of drug test can vary, urine tests are the most common due to their cost-effectiveness and ability to detect recent drug use. Hair follicle tests might be used to provide a history of drug use over a more extended period.

Types of Drug Tests Used in New York Custody Cases

In New York custody cases, courts can order a variety of drug tests to determine if a parent’s substance use is endangering a child. Here are the most common types:

1. Urine Tests.  Urine tests are the most frequently ordered tests due to their affordability and quick turnaround time for results, often available within just a few minutes.  Urine tests typically detect drug use within the past few days, though this can vary depending on the substance.  Unfortunately, urine tests be susceptible to tampering, and some drugs may be undetectable after a short period.
2. Hair Follicle Tests.  Hair follicle tests offer a longer detection window and can detect drug use for up to 180 days for head hair, providing a broader history of substance use.  Body hair tests can detect usage for up to a year.  Hair follicle tests are more difficult to tamper with, thereby making them a more reliable option in some cases.  In terms of cost, hair follicle tests are generally more expensive than urine tests.
3. Blood Tests.  Blood tests are highly accurate but uncommon in custody cases due to their high cost and invasive nature. 
4. Saliva Tests.  Similarly, saliva tests are not common in custody litigation as they generally detect only the most recent usage.

Factors influencing the type of test ordered:

• Allegations: The specific substances alleged to be used can influence the type of test chosen.
• Cost: Obviously, the financial expense of the test is a factor in most cases.
• Judge’s preference: Some judges may have preferences for certain testing methods.
• History of substance abuse: If there’s a history of long-term substance abuse, a hair follicle test might be preferred.
• Concerns about tampering: If there are concerns about a parent potentially tampering with a urine test, a hair follicle or blood test might be ordered.

What Happens if You Fail a Drug Test in a Custody Battle?

The consequences of a positive drug test in a custody case will depend on several factors, including:

• The type of substance: The court may view the use of certain substances, such as cocaine or heroin, more severely than others, like marijuana. However, any illegal substance use can raise concerns.
• Frequency of use and levels detected: Occasional use may be treated differently than chronic or habitual use.
• Impact on the child: The court’s primary focus is the child’s safety and well-being. If the drug use is directly or indirectly harming the child, the consequences will be more severe. This is especially true if there is a domestic violence component of the case.
• Willingness to seek help: Demonstrating a commitment to recovery by entering a rehabilitation program and attending counseling can positively influence the court’s decision.

Will a Positive Drug Test Affect Child Custody or Visitation?

The consequences of failing a drug test during a custody case can be extreme. A positive drug test can absolutely influence child custody and visitation. Here are some potential outcomes:

• Supervised visitation: The court may order supervised visitation, where a neutral third party monitors the parent-child interactions. This ensures the child’s safety while allowing the parent to maintain a relationship with their child.
• Restricted visitation: The court may limit the frequency and duration of visits or prohibit overnight stays.
• Temporary loss of custody: The court may temporarily award custody to the other parent while the parent with the positive drug test addresses their substance use.
• Termination of parental rights: Although rare, in extreme cases of substance use in neglect or abuse cases, the Department of social Services may pursue a termination of parental rights.

What to Do If You Test Positive for Drugs in a Child Custody Case

If you face a positive drug test in a custody case, taking immediate action is crucial:

1. Seek legal counsel: An experienced New York family law attorney can guide you through the legal process, protect your rights, and advocate for your interests in court.
2. Be honest with your attorney: Transparency is vital. Your attorney needs to know the full extent of your substance use to develop the best defense strategy.
3. Consider a rehabilitation program: Entering a rehab program demonstrates your commitment to recovery and your willingness to prioritize your child’s well-being.
4. Attend counseling: Individual or family counseling can help you address the root causes of your substance use and develop healthy coping mechanisms.
5. Follow court orders: Adhering to court orders, including drug testing and visitation schedules, is essential to show your cooperation and commitment to change.
6. Further testing: Drug tests are imperfect.  If you believe that your test indicates a false positive, you may wish to consider submitting to further testing.

Can You Refuse a Drug Test in Family Court?

Clients frequently ask “do I have the right to decline a drug test?” Refusing a court-ordered drug test can have serious consequences. The court may interpret your refusal as an admission of guilt and take adverse action against you, such as limiting your visitation or even granting temporary custody to the other parent.

On the other hand, it is very common for one parent to demand that the other parent take a drug test outside of the scope of litigation. Unless there is an Order or other mandate in place that requires one to take a drug test, the other parent has no legal right to insist upon the test being taken.

Drug Use and Neglect Petitions – Child Protective Services

A positive drug test may result in what is commonly known as a Court Ordered Investigation (sometimes known as a COI) or a 1034 investigation (pursuant to Family Court Act § 1034). Child Protective Services (CPS) will then conduct an investigation based on the allegations in the Court Order.

What does a 1034 investigation involve?

Similar to other CPS investigations, a 1034 investigation involves:

• Gathering information: The CPS caseworker will interview the parents, the child, and other relevant individuals (family members, teachers, doctors). They may also review records like medical history, school reports, and police reports.
• Assessing the home environment: The caseworker will visit the home to assess its safety and suitability for the child.
• Determining risk: The caseworker will evaluate the risk of harm to the child and identify any contributing factors.
• Making recommendations: The caseworker will submit a written report to the court with their findings and recommendations. This may include recommendations for services, treatment, or supervision.  

How Does a 1034 Report Impact a Family Court Case?

The 1034 report provides the judge with valuable information to help them make decisions in the best interests of the child. The judge will consider the report’s findings and recommendations, along with other evidence presented in the case.

In some cases, a positive drug test or a 1034 report may lead to a neglect petition being filed by CPS and the Department of Social Services under Family Court Act article 10. This can involve CPS investigating the situation and potentially removing the child from the home if there’s an imminent risk or danger.  It’s important to remember that child protective services’ primary goal is to ensure the child’s safety and well-being. Cooperating with their investigation and demonstrating a willingness to address substance use issues can help mitigate the situation’s impact on your custodial rights but such actions must be taken in a measured and cautious fashion.

Free Consultation with a New York Child Custody Attorney

If you’re facing a custody dispute involving allegations of substance use, seeking legal representation from an experienced New York family law attorney is essential in protecting your rights and ensuring that you maintain access to your children. An experienced Long Island Family Law attorney can help you understand your rights and advocate for your interests and your child’s well-being during a free consultation. Contact us now to speak with a Suffolk County custody lawyer – call Louis L. Sternberg, P.C. at 631-600-3295 or use our online intake form.