Family Law: Drug Testing

Drug Testing in Parenting Matters

When it comes to dealing with parenting disputes through the Family Court, the best interests of the children involved is always of the highest importance. It’s for this very reason that the Family Court has the power to make parties involved in the proceedings undertake drug testing through independent testing agencies. This assist to ensure the children will not be exposed to risk or harm due to parental drug use.

Consequently, the results of this drug test can and will likely influence how much time a parent can spend with their child and what kind of contact they may have.

Under what circumstances is drug testing undertaken?

While drug matters are always dealt with on an individual, case-by-case basis, habitual and continual drug or alcohol abuse is historically considered by judges to pose a risk of harm to the child.

The two main factors taken into consideration by the Court when handing down parenting orders is:

  1. Ensuring the child has a meaningful relationship with both parents; and
  1. Protecting the child from physical or psychological harm, which may come about due to being exposed to substance abuse, neglect or family violence.

It is for this reason the Family Court can exercise their discretion as to when one or both parents are required to undertake random drug testing. Often, these tests are ordered even when the alleged drug user is disputing the allegations.

In the event that one party is concerned about drug use or risk to a child, they have the ability to file a Form 4 Notice of Child Abuse or Family Violence (or Risk) at the Family Court with. This process is flagged with the Department of Communities Child Protection and Family Support who then provide a report outlining the Department’s involvement with the family to the Courts to better inform their decision making.

If you have or are thinking about making a claim about partner’s drug abuse problem during a custody battle, you should also expect that the Court will order you to undergo testing as well as your spouse.

Types of drug testing

There are two main types of drug testing that can be conducted by the Courts. These include:

Urinalysis testing (the testing of urine for drugs):

This type of testing is widely used since it is quick, cost-effective, and less invasive compared to other types of tests.

Hair follicle testing (the testing of hair strands):

This type of drug testing is quite costly, and as such, is undertaken in certain circumstances where the Court requires evidence about a party’s drug use over a period of time. 

As substance use will typically have a significant impact on the parenting orders that a court will make, the Courts must also specify upfront the frequency and process for requesting a test, the timeframe in which a test is to be undertaken, chain of custody issues, the process for obtaining a sample and the consequences of a negative test result.

In most circumstances, each party meet the costs of their own individual drug testing.

What will a positive test result mean?

The results of these drug tests come with consequences. The presence of drugs could be the very reason for one parent to have restricted access to the child, and could even mean this special time with their child is supervised. As well as this, a positive result could lead to child and parent separation for those involved in a custody battle or child protection case. In gets even more complicated when both parents have been found to be unfit to parent as a result of drug use. In these circumstances, the Family Court may opt to grant temporary custody to someone else who can satisfy the immediate needs of the child while the parents demonstrate they are fit for this important role.

These decisions are made on an individual’s case-by-case basis using the facts of the matter.

More information

If you are the parent facing drug allegation charges, it is important you seek legal advice to ensure your evidence in Court demonstrates with your ability to care for your child and meet their needs satisfactorily. An experienced solicitor can guide you through this process and provide you with advice to help you reach the best possible outcomes for you and your child.

Child custody battles are incredibly complicated and are also heavily contested. If you require assistance with your family law parenting matter or have concerns regarding your children or the other parent that you wish to discuss, please do not hesitate to contact one of our lawyers today.

The information published is of a general nature and should not be construed as legal advice.

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