Courts in all states seek to further the best interests of the child when resolving both legal and physical custody matters. Legal custody covers major decision-making authority for the child -- such as medical consent and church affiliation -- and physical custody refers to the schedule for where the child stays overnight. The court has broad discretion in fashioning an order regarding both types of custody, resulting in either a shared custody arrangement between parents or granting sole custody to one parent alone.
Role of Drug Use
Evidence of illegal drug use is typically a factor that can be used against a parent in a legal or physical custody dispute. This is based on the rationale that an addicted parent is incapable of making good personal decisions, and therefore incapable of making decisions that further the best interests of the child. An illicit lifestyle may also indicate that a parent's home environment is unsafe, calling into question the welfare of the child. However, it is important to note that substance use or abuse is not by itself dispositive on custody, and may be outweighed by other factors, such as the existence of a strong relationship between parent and child or evidence that the other parent has a history of violent behavior.
Many states permit a family court to order drug testing to determine whether a parent is presently on narcotics. However, because a drug test can be highly invasive, states often require more than just the bare allegation from a former spouse that a parent is using. Some states deal with this issue by requiring that both parents are tested if an allegation is made. Other states give courts the authority to order testing at the judge's discretion, provided sufficient corroborating evidence is presented. This evidence might include a parent's recent drug conviction or the testimony of witnesses attesting that a parent consumed substances in their presence.
If drug testing is ordered, states typically have certain procedural safeguards in place to ensure the test is accurate and parent's constitutional rights are protected. These standards often mandate that the testing site is state approved and parent is afforded an opportunity to challenge a positive test result. States also may require that the test utilized is the least intrusive method available for determining use -- such as urine tests rather than hair follicle tests.