When one parent accuses the other of illegal drug abuse in an Arizona child custody\u00a0case, the judge often orders drug testing to determine whether the allegation is true. \u00a0If the results of the drug testing show that a parent is using or has recently used illegal drugs–or prescription drugs without a valid prescription–the judge may impose restrictions on custody (“legal decision-making”) and on parenting time which the judge believes are needed to protect the children involved.<\/p>\n
Unlike in criminal cases, parents of minor children involved in litigation over child custody and parenting time cannot claim that drug testing ordered without probable cause or a warrant violates their constitutional right against unlawful searches and seizures. \u00a0Arizona family court judges have broad authority to make orders they deem appropriate based on the best interests of the children involved.<\/p>\n
It’s important to understand that a parent in a family court child custody case cannot be physically forced against her will to submit to a drug test. \u00a0When drug testing is ordered and a parent refuses to test, however, the family court judge may draw an inference that, if the parent had submitted to the test, the result would have been positive for illegal drugs. \u00a0Most parents who refuse to submit to testing when it is ordered are treated the same as parents who test positive for drugs.<\/p>\n
When a parent tests positive for illegal drugs, or when a parent refuses to test after being ordered to do so, the judge typically orders supervised or limited parenting time (e.g., no overnights) until the parent shows he is free of illegal drugs. \u00a0One positive\/dirty result usually triggers additional random drug tests until the parent strings together enough clean drug tests to show the judge that he is truly free from drugs and that the resumption of unrestricted parenting time will not endanger the children. \u00a0The goal of the family court is not to punish a parent for using illegal drugs but rather to insure that the children involved are kept safe. \u00a0If a parent stays away from drugs and demonstrates that by showing a series of clean drug-test results, it is usually in the children’s best interests to resume a more normal parenting time schedule with that parent.<\/p>\n
Not all drugs are treated the same by the family court judges, and rightfully so. \u00a0 For example, the use of methamphetamine is associated with much more violent and unpredictable behavior than is the use of marijuana. \u00a0 A parent who has tested positive for meth use will probably be ordered to complete a much more rigorous series of clean drug tests–perhaps coupled with counseling and\/or rehab–before resuming a normal parenting time schedule than will a recreational marijuana user. \u00a0The more serious the drug, the more serious the consequences in family court.<\/p>\n
An interesting new development in Arizona family cases is the advent of legal marijuana use for medical purposes. \u00a0Although medical marijuana cards may be obtained fairly easily in Arizona by recreational marijuana users for fabricated “medical” reasons, my experience so far is that judges give medical marijuana card holders the benefit of the doubt. \u00a0I have been involved in a couple of child custody cases to date in which one parent had a medical marijuana card, and in both cases, the marijuana use was not a factor in judges’ child custody and parenting time decisions.<\/p>\n
Copyright \u00a9 2014 by Scoresby Family Law \u2013 J. Kyle Scoresby, P.C. All rights reserved.<\/p>\n
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