SUBSTANCE ABUSE IN FAMILY LAW: WHEN AND HOW TO GET A DRUG TEST AND HOW TO PROCEED IF THE ABUSER IS YOUR CLIENT
By Amy A. Yu and Gail M Towne
Substance abuse is a leading cause of the breakdown of marriages[i]. It is important for family law practitioners to be knowledgeable of likely signs of substance abuse and possible courses of action to consider throughout any pending custody case and thereafter. An alcohol or drug addiction[ii] of a parent is an extremely important issue in any divorce case particularly those involving property and custody disputes. Dissipation of marital assets is a likely claim to be made when one party is an abuser. Also, the presence of drug use could potentially influence each and every child custody factor depending on the facts and circumstances involved.[iii] The attorney should investigate if there is an indication that the client or the other party is abusing drugs or alcohol.
This is also especially important when there are indications that our own clients are an offending party. If an individual has a problem with drugs or alcohol, it will eventually become known and it is better to find out as soon as possible so that child safety issues can be addressed. All allegations or suspicions must be scrutinized. For example, there is a big difference between a glass of wine every now and then and the individual who has Crystal Methamphetamine labs scattered throughout his or her residence. But, what if the client (or other party) who claims to only have a glass of wine every now and then is a “recovered alcoholic”? This could be a problem. In both examples, neither individual would be likely to openly admit a problem, so further assessment of the issue is necessary.
This article discusses the likely signs of substance abuse and possible courses of action family law attorneys may consider throughout any pending divorce or custody case and post-judgment. It is not the attorney’s place to judge how bad the problem is, but to acknowledge that there is a problem and what is to be done about it.
Signs of substance abuse
If there is any question one party is abusing drugs or alcohol, that question must be answered immediately. Anyone involved with someone with a history of substance abuse can be in for a tumultuous ride if they don’t have a clue how to handle themselves[iv]. A divorce or custody case could start and finish without anyone ever realizing that a party has a substance abuse problem. This would be a devastating loss of an opportunity to get someone the help that he or she may need. This could be a disaster for any children involved, placing them in the heart of a downward spiral that so often accompanies individuals with substance abuse addictions. Family law attorneys must be aware of the signs. Some signs of substance abuse may include the following:
· Unexpected changes in work attendance and quality of work.
· Frequently borrowing money, selling possessions, stealing items from employer, home, or school; or excessive spending of money with no reasonable explanation or nothing to show for it.
· Angry outbursts, mood swings, irritability, manic behavior, or overall attitude change.
· Talking incoherently or making inappropriate remarks.
· Deterioration of physical appearance and grooming.
· Wearing sunglasses and/or long sleeve shirts frequently or at inappropriate times.
· No longer spending time with friends who don't use drugs and/or associating with known users. The sudden appearance of new friends whose presence is constant.
· Engaging in secretive or suspicious behaviors, such as making frequent trips to the restroom, basement, or other isolated areas where drug use would be undisturbed.
· Expressing feelings of exhaustion, depression, and hopelessness.[v]
If any of these signs or other suspicion is apparent to the attorney for either side, further inquiry should be made.
Amy’s Notes:
1. The Judge needs to be convinced of the urgency of an order by providing the Judge with establishing factors why the Judge should order it. The use of the S & S Factors such as the driving record, prescription records, rehabilitation records, arrest records, police report for symptoms of alcohol and drug abuse can be used to establish the need of an order.
2. Timeliness is important if you suspect drug use. The attorney needs to get the order and collection immediately because it provides more meaning. Some drugs are immediately out of the system.
Complements of Valid Drug Test
Attorneys bring test results. Are they valid? Are they credible? Are they useful? Was a chain of custody completed? Was the drug testing random or scheduled? Was it on site testing? Was it confirmed? Who scheduled the testing?
A lab report has credibility. The test needs to be random. There needs to be a chain of custody. There needs to be personal identity. A second test needs to confirm the results. Measures must be taken to avoid adulteration or manipulation of the collection process.
Drug Testing
Of course, suspicions must be proven right or wrong in order to proceed appropriately. Inquiries into backgrounds can be done, interrogatories, depositions, subpoenas, video taping, photographing, some of which may provide eyewitness accounts, police reports, medical records, etc. are available evidence to primarily prove isolated incidents or past use and should be included when gathering evidence of suspected substance abuse. While all of these oftentimes routine methods of discovery are generally helpful, the problem is that they just take too much time and they also do not generally show an ongoing use. When there is a sincere belief that substance abuse may be an issue, time is of the essence. This is where the drug test comes in.[vi]
The principle concern of substance abuse in a family law case is the credibility of the party and whether or not drug or alcohol abuse is continuous, if it is an issue when the party is caring for the children, what kind of drugs the individual is abusing, how much and how often and the extent the party is being truthful about the abuse and/or getting help. Drug tests can prove or at least lend persuasive insight into the above unanswered questions.
How to Conduct a Drug Test
The first step is to get the order requiring drug testing. Obtaining consent from the party to be tested can often be accomplished. Addicts can be so overconfident or in denial, believing he or she can beat the tests and willingly agree to be tested[vii]. Sometimes the issue will need to adjudicated by the Family Court Judge. The attorney seeking to procure the testing will argue that there are strong signs of substance abuse present and drug testing must be done immediately particularly if minor children are involved. This is where the other evidence (witness testimony, pictures, reports, medical records, etc.) will most likely play its role. The evidence presented will show a history of substance abuse and the likelihood of repeated use and the need for verification and or prevention. It is common for a family court judge to order both parties be tested and both parties must pay the cost for the testing. This is a small price to pay considering the stakes.
The Interim Drug Testing Order
Whether the party consents to be tested or not, the testing should not proceed without a specific court order. When drafting an order or seeking the relief from the Court, the focus should be on what specifically is intended to be proven. The court order should state specifically where the testing should occur, how it shall be controlled/monitored, what specific type of testing should be done (urine drops, swab testing, sweat patch testing, hair follicle testing, etc.), how often each test will be done and, who is responsible for the cost of the testing.[viii] The order should also specifically state who is to receive the report and whether or not it will be admissible into evidence.[ix] In addition, the order should further instruct interim custody and parenting time arrangements and resulting custody and parenting time arrangements should a positive test result.
The type of testing ordered should be consistent with the types of drug or alcohol abuse suspected. The facility as designated by the order must be one that conducts this kind of testing. Not all facilities have the means to do certain types of tests. Drug testing can be expensive, so the key is generally to keep it to specific testing depending on what one wishes to prove. It is imperative that the attorney do his or her homework and speak with a professional that conducts various types of drug tests[x] prior to proceeding with the order. That way, he or she knows what tests should be done to prove the actual suspicion. Information to be gleaned during these conversations would be what types of tests prove what types of drugs/alcohol, how far back in time they go (i.e. 12 hours, 90 days, etc.), how much each test costs and what to do if duration and/or quantity is an issue. Comprehensive drug testing is also available at certain facilities and should be discussed with the professional when considering what type of testing is to be requested and included.
The types of forensic tests vary as to what they test for, the period of time the testing covers and cost. A simple synopsis of available tests is set forth below (although this table is not to be relied on as there are variations of the tests and the costs vary from facility to facility and lab to lab):
Name of Test / Estimated cost / Time of Use / When to useUrine analysis / Present use and immediate past use 1-5 days depending on the particular drug to be tested / Tests for alcohol and marijuana use in the last 24-48 hours. Marijuana tested time is based on usage so the time frame will vary.
Breathalyzer / Present use / Immediate alcohol use. Good to use randomly
Hair follicle test / Past use / Tests for past drug use after the drug has metabolized up to 90 days. Cocaine (Cocaine & Benzoylecgonine), Marijuana, Opiates (Codeine, Morphine & 6-Monacteyl Morphine), Methamphetamine (Methamphetamine/Amphetamine & Ecstasy) and Phencyclidine (PCP). Not a good test for alcohol so may need to use in conjunction with other tests. Need at least a ½ inch of hair, but 1 ½ inch is preferred to go back farther. Make sure that the order contains a provision not to cut, bleach or otherwise process the hair at any time prior to the testing or the test will be deemed positive.
Mouth swab test / Present and immediate past use
Sweat patch test / Future/ongoing use over a 2-3 week period / This test is used to detect ongoing use, usually in conjunction with another test. The sweat patch is generally good for 2-3 weeks. It will best to be used to show an ongoing use of cocaine and/or marijuana.
Blood test / Present use and the past 3-7 days / Immediate blood alcohol levels
It is important to frame the above interim drug testing order to reflect what happens if there is a positive or negative result. The order should define what a positive or negative result means and what impact that result should have. The order should be narrow enough, yet flexible enough to anticipate a surprising result. For example, suppose a party was ordered to submit to a hair follicle test because she was believed to be abusing various prescription medications. The party’s test results came back negative as to the specific medications alleged to being abused. However, she tested positive to the use of cocaine and other illegal substances. The order in this case set forth specific parameters as to the effect of a positive test to the specific prescription medications and any other illegal substance.
The order should generally direct that custody and parenting time will be pending issues until the drug test results are in which could take several weeks. Unsupervised parenting time will often be considered in the interim since it sometimes takes several weeks for certain test results to come in, particularly if one wants ongoing testing with random urine drops or sweat patch testing. The order should state that if either party tests positive for any substances, then that party’s parenting time should be suspended immediately until the parties can appear again before the Court. The order should also state that a positive test will be presumed if either party fails to appear for any testing that is ordered.
The Final Drug Testing Order
When formulating the final drug testing order, future uncertainties must be considered since ongoing testing will be likely. Absolute specificity is necessary when instructing ongoing testing. The issue of parenting time will be revisited until a party tests negative for a certain period of time. The duration of the testing and resulting parenting time dependent on the outcome of the test will vary case by case, but should definitely be considered when drafting the final order. A party may never come back clean or may even stop appearing for testing and may lose parenting time privileges entirely. But, at some point, he or she may decide to come back to court, maybe even years later, seeking parenting time. The last order should speak as to what needs to be done before any parenting time is to occur to ensure that the abuser has sought treatment and/or has exhibited a prolonged clean and healthy record.
Special Considerations when the attorney’s client is suspected of substance abuse
If an attorney suspects his or her client of abusing drugs or alcohol, the attorney should arrange to have the client tested for several reasons. First of all, the test should prove whether or not there is any credence in the suspicion or allegation. The attorney needs to know if his or her client has a drug or alcohol problem and even more importantly, the attorney needs to know if his or her client is credible. The attorney can have his or her client undergo private drug testing as a preventative measure. If the client tests positive, proactive measures to protect the children and get your client the help he or she requires needs to start now.