The court has the power to make orders for drug testing when it comes to parenting disputes in family law.
Even though it is not mentioned anywhere in the Family Law Act 1975, drug use can have an impact on the court’s orders for custody and parental responsibility. This applies equally to both drug use because of addiction and for recreational purposes.
The drug test is done to reduce any risk posed to the children. This is the part of the court’s responsibility when determining the outcome of a parenting dispute. Of course, this should be done with the best interests of the children in mind.
The results of a drug test may influence how much time a parent is allowed to spend with their child, as well as what kind of contact he or she may have.
Family Court-Ordered Drug Testing
In a case, it may happen that one party alleges that the other has had a history of alcohol or illicit substances abuse.
Before the process has even begun, both parties are required to submit a Notice of Risk to the court. This document is where they are obliged to disclose any allegations they have about the other party putting the child at risk of neglect or abuse.
Apart from the Court, the Independent Children’s Lawyer can also request a drug test. The Independent Children’s Lawyer represents the needs and best interests of the child or children involved in the parenting dispute.
The decision whether an order for a drug test will be made or not is made by the court, and the court exercises its discretion when making this decision.
If a party refuses to partake in the drug testing, it will be followed by the presumption of a positive test result.
Drug testing is usually done in between court dates. The test results are provided to all parties to the court proceedings before the next date.
Each party is responsible for the costs of their own drug testing.
Random drug tests are not required to have an end date set by the court. As long as the court orders, drug testing can continue. The court may be satisfied with the results after three months, or alternatively, they may wish to continue the testing for more than two years.
The Best Interests of the Child
Drug testing will be continued until the court is satisfied that there is no risk to the children of parental drug use.
According to the Family Law Act 1975, the best interests of the children comprise two primary considerations:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm due to being subject to, or exposed to, neglect, abuse or family violence.
The second point is considered more important than first, because it is most important to protect children from harm.
If the court feels that parental drug use would put the children at risk in the case of them being placed in that parent’s care, they will make an order that limits contact between the parent and the children.
Dependence on drugs can inhibit the parenting capacity of the person, and result in a lack of emotional availability for the children. Furthermore, if a person is addicted to alcohol or illicit substances, there is a greater probability of them causing physical harm to children in their care
The court is aware of the difference between recreational drug use and drug use due to a dependence on them. Matters involving drugs will be decided on a case-by-case basis, just like any other parenting matters.
Based on the individual circumstances of the parent, the court will determine whether a parent’s recreational use of drugs poses any risk to the children.
Types of Drug Tests in Family Law
The type of drug testing often depends on which drug or drugs the testing is for. This decision is to be made by the court.
There are three main types of drug testing:
- Urine testing, or urinalysis, is the type most likely to be ordered by the court. This test is useful to test for drug use in the short time period prior to the taking of the sample.
- Blood tests.
- Hair follicle test. This test can reveal if the person has used certain drugs in the past 90 days.
We at Withstand Lawyers have had the opportunity to deal with a wide range of intricate cases, and learn to build evidence in support of our clients. Our team consists of highly qualified accredited lawyers who are able to overcome the legal challenges of our clients. If you are afraid you might be accused of using drugs, talk to your representative at Withstand Lawyers to discuss how they can build a strong case for you.