The last thing that you want to encounter in your child custody case is a surprise. Family law attorneys work towards reducing the occurrence of surprises to prepare and guide our clients towards achieving whatever goals they have in mind. In a child custody case, where facts are oftentimes more important than the law, a negative mark against your ability to parent your child can often spell disaster for your case.
One aspect of your child custody case where surprise can actually be used to your advantage is drug testing. Anyone who has applied for a job within the past 10-15 years knows that drug testing is a common requirement to be approved to work at most any business in today’s world- especially in large companies like corporations. However, with the prevalence of drug testing comes an increase in people better able to prepare for and pass drug tests even after being habitual users of illegal drugs.
The great equalizer in this battle between people trying to game the system and those parents trying to show that their ex-spouse is a drug user can have un-planned and unannounced drug testing be a part of your case. However, there is some strategy involved, and you and your attorney must have a plan in place- a plan that your ex-spouse is unaware of.
Today’s blog post from the Law Office of Bryan Fagan, PLLC, will touch on the subject of drug testing in child custody cases in Texas and how surprising your ex-spouse with a drug test can often wind up benefiting you a great deal.
To what extent are you able to surprise your ex-spouse with a drug test?
It happens not infrequently that parties are asked to submit drug test samples during the middle of a hearing. In Harris County, judges benefit from having a drug testing facility right across the street from the courthouse. All it takes is a phone call to their office to get an employee to court to administer the tests. An impromptu drug test involves both parties being tested, however, so if you are not in a position to pass a drug test yourself, then you may want to reconsider how aggressively you push to have a drug test administered upon your ex-spouse without notice.
Alcohol testing is also administered in situations where a parent’s drinking has become a problem with endangering their child's health. For example, I had a case last year where a client’s one-year-old son was riding in a vehicle being driven by his father, who was under the influence of alcohol. In this situation, the child was asleep in their car-seat as the father drove southward on I-45 for almost two miles, with police cruisers flashing their lights behind him. Apparently, the father had been swerving and caught the attention of a police officer. However, the father was so intoxicated that he did not notice police on his tail until nearly two minutes after the police vehicles appeared behind him.
The difficulty associated with alcohol testing is that alcohol does not stay in your system for nearly as long as drugs do. With that being said, if you are forced to give notice to your ex-spouse that he or she is going to be drug/alcohol tested, he or she can stop drinking for a relatively short period of time to beat the test and pass. An unannounced drug test that comes about as an order from a court can effectively catch someone drinks alcohol.
Other methods of drug testing
Courts have more than just urine screenings as methods to test for drug and alcohol usage. The hair follicle, nail clippings, and/or nail shavings can all be tested to detect drugs or alcohol usage. Hair and nails can allow testers to pick up drug/alcohol use from months in the past instead of just a few days in the case of a urinalysis.
What happens if you fail a court-ordered drug test?
A court must use the standard when approaching any issue related to your child to determine what is in that child’s best interests. If a judge determines that your child's best interests will be affected due to possible drug/alcohol use, then it is probable that the court will grant your request for a drug test. For instance, if you have been the victim of domestic abuse or your children have the victims of abuse in your home, it is more likely than not that a judge would welcome the opportunity to rule out drugs as a factor in that violence by having a drug test be administered.
When a test comes back positive for drugs or alcohol, it is up to the judge to rule based on those rest results. Custody and visitation rights for a parent who has tested positive in a drug test are oftentimes restricted or made to be supervised. Supervised visitation usually occurs either at the house of a relative or at a court-approved third party visitation center. Your visitation with your children would be supervised at all times by another adult until further orders of the court allow you to have more time with your child.
A positive test result will likely require that you register with a local counselor or therapist that works with parents in your situation. Weekly meetings are held, and your progress will be tracked and communicated to the judge in your case. Additionally, you will be asked to submit to additional, future drug tests that will be paid initially by you and then later on by your ex-spouse if you are found to be drug-free for an extended period of time.
Working with an experienced family law attorney can help you in coming up with a winning strategy.
So much of family law depends not on the law as it is written in the Texas Family Code but on how your case's facts and circumstances are portrayed in court. I know or suspect your ex-spouse is abusing alcohol and/or drugs. This is an issue that you should raise with your attorney. You all have options to pursue, but it is always best to plan as you enter into the child custody case.
Do not assume that just because other parts of your case have seemingly taken forever to complete, so too, it will be when it comes to getting an order to have your ex-spouse drug tested. It does take some time and some cunning on your part to work it out as to when you all would be most likely to have the judge grant your request for a test.
Family law attorneys have the level of experience and courtroom know-how that you need when moving forward with a request to have your ex-spouse drug tested immediately regarding your child custody case. You do not want to take a risk that your ex-spouse will be able to do something to manipulate the test’s results. My advice would be to work with a licensed family law attorney in your child custody case. We know the law and how to apply it to your advantage.
Questions on your family law case? Contact the Law Office of Bryan Fagan, PLLC
If you have questions about any of the material that we covered today or are merely seeking clarification on something that you read today, please consider contacting the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys.
From Baytown to The Woodlands and down to Galveston, your attorneys and staff take a great deal of pride in working with men and women just like you that live in our community. Putting your interests ahead of ours and helping you achieve your desired outcome are hallmarks of our office.
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Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX child custody lawyers right away to protect your rights.
Our child custody lawyers in Houston, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles child custody cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.