When Can a Court Order Drug Testing in Child Custody Case

The ongoing divorce battle between American comedian Rosie O’Donnell and estranged wife Michelle Rounds has heated up after Michelle’s lawyers asked for a court order compelling Rosie to undergo random drug testing before their child custody issue is resolved. The couple was married in 2012 and together, they adopted a baby girl Dakota who is now at the center of the contentious custody case.

Basis for Request for Drug Testing

The couple currently share custody over the 2-year old girl, but Michelle now wants to obtain full custody claiming that Rosie’s alleged regular and continuous consumption of alcohol and marijuana made her unable to care for their daughter.

On the other hand, Rosie’s lawyers maintain that Michelle’s statements have violated their prenuptial agreement which has a confidentiality clause and have asked that the court enforce it.

The court recently denied the request for random drug testing stating that it does not consider Rosie unfit to continue the joint parenting agreement between the parties. Michelle’s camp is not backing down and maintains that they will continue to fight for full custody despite the latest court ruling.

Family Code on Drug Testing

In California, section 3041.5 of the California Family Code allows a court to order persons asking for custody of or visitation with a child in a child custody case to undergo drug or alcohol testing under limited circumstances.

Drug and alcohol abuse may be considered as one of several factors in the determination of the child’s ‘best interest’ in child custody disputes. In California, a survey showed that around 50% of child custody and visitation cases involved drug issues. But the law on compelling drug testing has strict limitations such as:

  • The requirement for a prior judicial determination that there is regular and continuous illegal use or abuse of prohibited substances or alcohol
  • Only the least intrusive method of testing may be ordered
  • The test must be administered according to certain prescribed procedures and standards of the U.S. Department of Health

Impact of Drug Abuse in Custody Cases

Drug and alcohol abuse may be a factor in child custody cases but it is only one of several criteria that a family court judge will consider.

If you are seeking child custody in a high-conflict divorce or custody case, detailing various factors against the other parent can improve your chances of obtaining a favorable outcome. Your family law attorney will be able to assess your situation from all angles, and prepare a compelling case before the family court judge.

In Modesto, California, the law firm of Arata, Swingle, Van Egmond & Goodwin has over 60 years of combined experience in family law, helping clients resolve child custody issues and move on with their lives after divorce or separation.

We invite you to give us a call at (209) 522-2211 to schedule a consultation with one of our attorneys.