Unfortunately, family law cases involve one parent making allegations of substance abuse against the other parent. In some scenarios, these allegations are just that- allegations- and no evidence exists to substantiate them.
However, even when these sorts of allegations have no merit, an investigation will still need to be undertaken by the court to determine that your child is not in harm’s way.
This can be a hectic and stressful time for you as a parent, even if you know full well that the allegations being made against you are baseless and untrue.
Drug Testing: A first step to determining whether or not a party has a substance abuse problem
Typically if you or your spouse request that the other party is drug or substance abuse tested, the judge will grant that motion and make it mutual. This means that the requestor of the drug test will be tested as well. This is seen as being fair by the court in that both sides’ treatment will be equal in the eyes of the law.
I have seen judges order both parties to a child custody case to be drug tested that afternoon at a specific testing facility near the courthouse. The results will be submitted to both attorneys and the judge within 48 hours.
In certain instances, I have seen a judge call a drug testing facility and have an employee come to the courthouse immediately to have urine and hair specimens taken at the courthouse.
Depending on the allegations and the judge’s interpretation of the subjective possibility of harm befalling your child, he or she may order either of these types of drug tests for you and your opposing party. Costs of the drug test are split between you and your opposing party most of the time.
How a positive drug test impacts a child custody modification case
If you have filed a modification case against your ex-spouse due to your becoming aware that he or she is abusing a controlled substance, a court will look at a positive drug test as one of a few factors when considering whether or not to grant the modification request.
As I mentioned earlier, the judge will need to consider the positive test result in the context of its potential impact on your child. A connection between substance abuse and potential harm to your child will need to be strong in many cases to have an order modified.
The reason is that the basis of a child custody modification case in Texas is that the court will need to see and be presented with evidence to show that a substantial change in circumstances has occurred since the previous order rendition. This substantial change in circumstances can involve the circumstances of either yourself, your opposing party, or your child.
For example, our office recently represented a father who filed a custody modification lawsuit here in Harris County. Our client had become aware of his ex-wife’s having abused prescription medicine prescribed to treat her depression.
Her depression had gone untreated and unmedicated for some time, and when the diagnosis was finally received, the opposing party began almost immediately to abuse her medicines.
The family law court that had jurisdiction over her case determined that the nature of her health problems being what they were, combined with the substance abuse that was occurring, were strong enough factors in determining that the mother was no longer able to care for our client’s son.
Our client testified that the opposing party had moved three times in the past four months and had been bouncing from job to job as well during that same time period. This caused a great deal of turmoil in the life of the parties’ elementary school-aged son.
As the mother’s abuse of prescription drugs, lifestyle choices, and changes in her temperament began to affect the child, the judge found sufficient change in circumstances to award our client with the child’s primary conservatorship.
Goals of the court in a lawsuit involving potential substance abuse by a parent
All family law cases in Texas that involve a child necessarily have the judge take the viewpoint of what would be in your child’s best interests. It is not simply what is best for the health of you, or your ex-spouse, or anything along those lines.
While those are important considerations, obviously, the most important thing regarding your health is how it impacts your child’s life. When your decisions regarding what substances to put into your body begin to affect your child, a judge will become concerned to the point where the custody arrangement between you and your ex-spouse may need to be altered.
If you believe that your ex-spouse is abusing substances, be they legal or illegal, it is up to you to bring this to the court’s attention. If you do not modify your orders in this way, there is no other avenue for you to turn to seek a permanent and long-lasting change that can impact your child.
Seeking help in removing your child from a potentially dangerous situation would be the next step that you should undertake in this sort of situation.
Contact the Law Office of Bryan Fagan, PLLC, today to learn more about substance abuse and child custody.
To learn more about the subject of child custody and how a parent’s substance abuse can impact a case, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC, today.
One of our licensed family law attorneys is standing by and able to meet with you six days a week. A consultation is free of charge and can help you to determine if filing a modification case is in the best interest of your child and your family.
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