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Family Law

Drug testing and family law

By September 19, 2017No Comments

By Gianna Huesch

With the pervasiveness of drug use and abuse in our society, allegations by a parent that the other parent is taking drugs while caring for the children are frequently seen in the family courts.

In parenting matters, family court judges are mandated to consider the best interests of the child above all else, so making parenting orders depends on the judge establishing that the children involved are safe and not at risk of harm. This includes being satisfied that their parents have the capacity to properly care for them without being affected by the use of illicit substances.  Allegations of drug use are taken seriously given the high likelihood that a drug-affected person’s parental capacity will be affected and that exposure to drug use can be very dangerous to children.

Since a judge can’t be satisfied by simple denials of allegations, the simplest and most effective method for courts to substantiate claims about drug use made on either side (or both sides) is to order that parties undergo random drug screening.  This way the court can obtain reliable, independent evidence regarding a party’s alleged drug use and consequently make a decision as to the level of risk of harm to the children involved in a matter and what the parenting arrangements should be.  Drug testing may be ordered to be undertaken by parents but is also sometimes ordered for new partners or any other people who spend time with the kids.

Drug testing is typically done through obtaining a urine sample, though courts do also order hair follicle testing.  Urinalysis testing is done at a pathology laboratory under strict supervision by qualified personnel to prevent cheating, and must comply with Australian standards. Costs vary but are usually around $130 to $160 per urine test, and usually each party absorbs the cost of their own tests.

Hair follicle testing requires a sample of hair to be extracted and tested for drugs—these tests are usually more expensive but have the advantage of being able to detect usage dating back months.  When allegations are especially serious or relate to ongoing use, these are more commonly requested.

When a court orders drug testing, it will specify the frequency with which screening should occur and for how long—which can be anything from three months to several years and even indefinitely, depending on the severity of the suspected drug problem.  The kids may be removed from a parent’s care, if the court considers the children to be at risk, to protect them from exposure to and harm from the drug abuse.

If you have concerns over drug use, when negotiating with your ex you can ask them to supply proof they are not abusing drugs by agreeing to submit to drug tests, but if they refuse, you can make an application the court seeking that orders are made that your ex submits to drug testing.

On the other hand if you are the target of allegations of drug use yourself, and have been ordered by the court to be screened for drug use, it’s necessary to fully comply with the order.  Failure to comply can be interpreted by a court as you having avoided the screening process for fear of testing positive and would then give weight to the other party’s allegations.

If allegations are made against you and a court orders you to undergo drug testing, remember that if you know the other party’s allegations are without foundation, taking drug tests is an easy way to prove you are telling the truth and will go a long way towards improving your credibility in the eyes of the court.

Do you need advice regarding a parenting matter involving allegations of drug use by a parent or other significant carer? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law, on (02) 6223 2400 for confidential advice.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice for your circumstances, please contact us here at Alliance.

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