An Order can come from a court in Texas that mandates each party to a divorce to be drug tested for many reasons. Among the reasons why a parent may lose the right to have as much possession and access to their children as they would like, drug use is right at the top of the list.
A court will determine custody based on the best interests of the child and obviously a positive drug test shows a parent is not acting in the best interests of the child. The attorneys with the Law Office of Bryan Fagan, PLLC have worked with clients on both sides of a positive drug test. For the purpose of this blog we’ll first take a look at how a drug test can be requested in a divorce case. Next, the story of our client who was able to “come back” from a positive drug test will be discussed in more detail.
How To Request a Drug Test in a Texas Divorce case
It’s not as if a judge will take a look at two persons and immediately order them to be drug tested at first sight. A Court will need some sort of evidence that a drug test is needed. A motion for the court to order drug testing is the typical vehicle to get this process underway. In order to allow the testing to occur before the temporary orders phase of a case it makes sense, procedurally, to file this motion early on in the case.
If a hearing is had on the motion the requesting party will need to present credible evidence as to why the testing is necessary. If the judge grants the motion then the requesting party should be ready to get tested as well. Making an order to be drug tested joint and mutual is standard operating procedure for most courts in Southeast Texas.
Responding to a Motion for Drug Testing
An opposing motion to have drug testing be ordered should immediately be filed once the other side’s motion is received. In the motion the countering party needs to list the reasons why drug testing is not necessary.
Most courts will, however, grant a party’s motion for drug testing so the opposing party should be ready to follow the court’s order as to where, when and what type of test needs to be administered.
A Positive Drug Test: How to Proceed Forward
The aforementioned client of the Law Office of Bryan Fagan, PLLC had a decision facing her after testing positive for a handful of illegal substances at the outset of her divorce case. She could wallow in sadness at her prior bad decisions or she could choose to do something and improve her standing. The first step she took was to speak to her attorney openly and honestly prior to the drug test so that the positive result was not a surprise to him.
Our office assisted the client in finding a sobriety group to join so that she could better herself and be among others who were going through similar issues in their own lives. Not only was this a positive for our client as an individual but she was positioning herself to be able to show the judge down the line that she was taking her positive drug test result seriously.
This positive decision was met with the Court’s approval but the decision by the Court was to order our client to have only supervised visitation until a drug rehabilitation course could be completed. This was obviously not what our client wanted to see happen but because she was honest with her attorney she would at least not be caught off guard by the order of the court.
Amicus Attorney: Their role in a Texas divorce case
In divorce cases where custody is being disputed or when there are delicate issues (such as a positive drug test) a court may appoint an amicus attorney. This attorney represents the interests the child and acts as the eyes and ears for the court outside the courthouse.
Amicus attorneys are practicing family law attorneys as well. The fact that the judge has appointed this particular person to the case means that their judgment is trusted by the court. It follows then that if the amicus makes a recommendation on a particular subject to either party then it is essentially a recommendation from the court itself and should be listened to.
A benefit to having this sort of an attorney attached to the case is that he or she can help the parties and their lawyers negotiate through tough issues they might otherwise be unable to manage. In the situation with our client who tested positive on her drug test, the amicus attorney was able to help gain more time with her child once some time had passed from the initial positive result.
A positive drug test doesn’t necessarily mean a negative custody result
Additional/random drug tests ordered by the court came back clean as a whistle for our client. The substance abuse programs related our client’s consistent attendance to the judge as well. Once the case was set for mediation the visitation schedule our client had was expanded to allow for unsupervised periods of possession.
At mediation the parties agreed to our client having a standard possession order with no supervised element. This was about as dramatic a reversal as a party could expect given the situation. What made it all the more special was that she managed to make this reversal occur through her own, positive actions.
The Law Office of Bryan Fagan, PLLC: Experienced Family Law Attorneys
While particular results cannot be guaranteed in any divorce case, having competent, experienced representation can help ensure a positive outcome. The Houston divorce attorneys with the Law Office of Bryan Fagan, PLLC combine a thorough knowledge of the law with a reputation for strong advocacy skills in the courtroom. In order to learn more about how our office can assist you in your family law case, please contact us today for a free of charge consultation.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Custody E-Book”
Other Articles you may be interested in:
- What to Do When CPS Asks for a Drug Test in Texas
- CPS and how The Law Office of Bryan Fagan, PLLC can help
- Child Custody Basics in Texas
- Texas Child Visitation Modification
- 10 Quick Tips About Parental Visitation
- Texas Parental Visitation – Texas Standard Possession Orders in Harris and Montgomery County, Texas – Part 1
- Supervised Visitation in a Texas Divorce: Can it happen to me?
- Texas Parental Relocation
- Geographic Restrictions in Child Visitation Orders in Texas
- 7 Tips for Divorcing After Age 50 in Texas
- Drug and alcohol abuse: Texas parents face risks if they fail to become sober