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Can You Drug Test the Opposing Party?

It seems like every other call I get has some sort of relationship to drugs and/or drug abuse by the opposing party. Dealing with allegations of drug abuse is a significant part of my dependency court practice however it is also very prevalent in my family law practice as well. I am asked frequently if the family court can order drug testing of the other party. The answer to the question is yes however the extent of testing is not something you will be happy with.

Under Family Code section 3041.5, the family court may order drug or alcohol testing if it determines by a preponderance of the evidence that a parent engages in habitual, frequent, or continual use of such substances. The big question is how do you prove habitual, frequent, and continual use. The best way to prove it would be a conviction within the last 5 years for the illegal use or possession of a controlled substance. Without a criminal conviction it is harder to prove. Additionally, the family court must order the least intrusive method of testing for controlled substances. This means, only urine testing is permitted under the family code. The court may not order a hair follicle drug test unless the other side willingly submits to it. Deborah M. v Superior Court (2005) 128 CA4th 1181.

It is also very important to know that any testing that the court orders will be confidential and the results must be sealed.

If your ex has a drug problem do not hesitate to contact Land Legal Group, APC and we will gladly discuss your options.

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