Drug testing comes up a lot in parenting disputes. This is because the court may order parents to undertake drug testing for the welfare of a child, or one of the parties involved will request the other party undertake a drug test in family court.
In this blog, we cover the question – how do court ordered drug tests work?
Why does the court order drug tests?
In parenting and custodial matters, the court is primarily concerned with the welfare of children and their best interest, as outlined in section 60CC of the Family Law Act.
If it comes to the court’s attention that one of the parents may expose the child to harm due to the use of illicit substances, it will order the parties involved to undergo a drug test.
Usually, the court becomes aware of potential harm to a child because of drug use because of the ‘Notice of Risk’ or ‘Notice of Child Abuse, Family violence or Risk of Family Violence’ document that an involved party files along with their application or response.
So, if your relationship has broken down and you suspect that your partner may pose a risk to your child because of drug use, you can inform the court in your application.
What do court-ordered drug tests involve?
The kind of drug test or tests the court can order individuals to take will vary according to the drug they want to test for.
These can include:
- Urinalisys or urine testing – this helps the court determine if there has been any recent drug use or alcohol abuse
- EtG testing – this test determines if there has been any short term alcohol abuse
- Blood testing – this test helps determine if there is a history of alcoholism by analyzing the health of the person’s liver
- Hair follicle testing – this test reveals if a person has used a particular drug in the last 90 days.
Collectively these tests determine use of:
- Alcohol (abuse)
What happens when a court ordered drug test comes back positive?
A positive result on a court ordered drug test does not automatically mean that a parent will lose custody of their child. The court will usually consider each family matter on a case by case basis.
However, it is important to note that returning a positive result on a court ordered test doesn’t yield favourable results. Drug use can impact a parent’s capacity to care for a child and may even expose the child to harm.
Here are a few different scenarios that may arise from a positive result on a court ordered drug test:
- The court differentiates between drug addiction and recreational drug use. If the parent engages in recreational drug use, the court will determine the best course of action based on the wellbeing of the child.
- If one parent abuses substances, the court may order the child to live with the other parent. The parent that abuses drugs may have visitation rights that may be supervised. They may also need to undergo periodic drug testing that must be complied with as specified by the court.
- If both parents abuse substances, the court will make a determination as to whom the child should live with. Both parents will be ordered to undergo regular drug testing. These orders need to be complied with within the specified time frame.
It is important to note that a refusal to get tested for drug use results in the court assuming a positive result returned.
If you would like to learn more about court ordered drug tests, please contact us here for a private consultation.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.