Child Custody and Drug Testing

By Bryan Driscoll, J.D.

Child Custody and Drug Testing

By Bryan Driscoll, J.D.

Courts understand that custody battles can be extremely emotional. They also understand that sometimes parents will do whatever they can to make their child's other parent look bad, which can include throwing out unsubstantiated accusations about drug use.

Pharmacist handing a bottle of medicine to a customer

That doesn't mean drug use isn't taken seriously by the court, though. If you have evidence that your child's other parent is using drugs, the court absolutely wants to know this information and will use it to determine custody.

Proving Drug Use During Divorce Proceedings

Every state has its own laws regarding child custody. However, they all have one theme in common: the best interests of the child are paramount. The question the court is constantly asking itself when determining custody during divorce proceedings is what custody decision will be of the greatest benefit to the child. This usually means that when a court determines custody, it's trying to give your child a similar life to what they would have had if you and your child's other parent stayed together.

One item a court considers when determining custody of your child is drug use of a parent. Courts do not take an accusation of drug use or abuse lightly. In fact, if you tell the court your child's other parent is using drugs and provide no evidence to support your accusation, it could be harmful to you.

Acceptable evidence of drug use varies but can include:

  • Prior convictions for drug use
  • Testimony of your child
  • Medical records
  • Pictures of drug paraphernalia

If you have evidence, immediately provide it to the court. The court will review your evidence and probably speak with your child outside of your presence or the presence of your child's other parent. The court wants to have a confidential conversation with your child to understand if the child knows of parental drug use and how it's impacting their life.

Drug Testing in Custody Decisions

If a court finds sufficient evidence to suggest that a parent is using drugs, it will take the step of ordering a drug test. A court does not order drug tests without evidence. Because this is an extremely invasive step, the court takes it seriously.

Depending on where you live, some states even require both parents to submit to a drug test when an accusation is made and evidence is presented. If a test comes back positive, the court uses this information in determining child custody. Courts can even terminate parental rights because of drug use.

By taking these steps, the court is only looking to make sure your child is protected. If your spouse exposes your child to drug use, that can have a severely negative impact on their growth. But drug use alone may not entirely revoke custody. Even if a court finds that a parent uses drugs, they may be a strong connection and relationship with your child that the court does not want to end, as it also could negatively impact your child.

The court will take steps to ensure your child is not exposed to drug use. These could include rehabilitation and regular drug testing by the offending parent. The court's goal in making custody decisions is always determining what is in the best interests of your child.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.