With nearly 20 million Americans struggling with substance abuse, alcohol and drug use play a major role in many divorce cases. If you’re getting a divorce and believe that your spouse has a problem with a substance, you have to address this concern before it puts you and your children at risk.
In Massachusetts, courts don’t order drug testing in cases of child custody under normal circumstances. The responsibility of requesting the test falls on the parent. However, just because a parent claims that another parent has a drug abuse problem, wouldn’t lead to a court order — unless the petitioning parent can provide evidence of the same. If your soon-to-be-ex-spouse misuses drugs, the burden of proof will fall upon you.
Divorce and family attorney Jay Davis has helped numerous clients through the complicated matters of divorce, child custody, and property division. His deep understanding of the Massachusetts divorce laws and his passion for serving his clients makes him an ideal choice when you need to legally separate from your partner or end your marriage. To schedule a consultation with Davis Law Group, call us at 617-221-3548 or fill out this online form.
When Does Massachusetts Court Order Drug Testing?
When it comes to family law involving children, the one golden rule every court follows is: to always act in the best interest of the child or children. If one parent has a documented history regarding drug/alcohol abuse, or they have a criminal record related to illegal drugs/alcohol, the court can order testing.
With that said, they may also ask for an independent corroboration of the substance in question. This means they could ask a government organization (like law enforcement, probation departments, social welfare agencies, medical facilities, etc.) to provide documented proof of the parent’s substance abuse. If there is no official document of your spouse’s drug use, you can file a court declaration concerning the issue. If any friends, family members, neighbors, employers, or any other 3rd party witnesses have any knowledge of your ex’s drug/alcohol use, you can include their testimony with this declaration.
As to what type of testing the court may order, it’s usually urine samples. In Massachusetts, it’s not possible to force a parent to take a hair follicle test, even though it is the most accurate way. The Massachusetts law is clear on what a judge may order; hair follicle testing is simply not allowed.
Also, it should be noted that a positive test result doesn’t automatically guarantee that your spouse will lose custody. But as we said, the court must act in the best interest of your child. Since substance abuse almost always leads to bad parenting decisions, the court will acknowledge this in the final ruling. If your spouse uses drugs even casually or occasionally, it won’t work in their favor.
At Davis Law Group, we offer free legal consultations over the phone to all of our clients. If you are considering divorce, our lead attorney Jay Davis would love to hear your story. Even if you don’t choose to hire a lawyer, the legal advice provided by Jay will help you make vital decisions going forward. Give us a call at 617-221-3548 or contact us online to set up an appointment today.
6 Things You Should Know About Requesting a Drug Test
If you want to file a motion for your spouse to undergo drug testing to determine child custody, here are some things you should know:
- Under the law, both you and your soon-to-be-spouse are equal. This means if you ask the court to have the other party tested for drugs, the court will likely order a testing for you as well, especially if both of you have been living at the same address during the custody proceedings. In most cases, the court orders both spouses to share the costs of testing.
- When you submit a declaration claiming about your spouse’s drug/alcohol use, you must include every single incident of such behavior that you or others personally witnessed. The apparent presence of drug use cannot be cited as evidence, so the “appearance of drug use” or changes in your spouse’s behavior don’t count as evidence.
- The only three instances in which an MA court will order a drug test are: if the parent in question has a history of drug use; if there is a witness testimony of the parent’s drug usage; and if there are drug-related convictions in the past. Simply accusing a parent of taking drugs is not enough to alter the proceedings.
- If one or both parents are proven to be drug users, the court will determine whether the child has easy access to the drugs because of their parents and whether the parents are taking the drugs in presence of the child. In some cases, the court may issue a removal order to protect the child. A third party may be given temporary custody (godparents or grandparents) if both parents turn out to be serious drug users.
- We mentioned earlier that a positive drug test doesn’t mean that the parent in question will automatically lose custody. Moreover, the court will almost certainly deny custody to a parent who is proven to be a long-time or habitual drug user and whose drug habits are going to negatively affect the child. But courts never want to ban parents from seeing their children, so even if custody is rejected, visitation rights are typically granted. If the parent’s drug usage is deemed detrimental, they may be ordered to undergo treatment/rehabilitation before visiting their child.
- If both parents test positive and are proved to have created an environment where the child could easily access (or consume) drugs or use drugs in front of their child, they could be criminally charged and sent to prison under child protection laws. The court may also order the Child Protective Services (CPS) to regularly meet and evaluate the family to ensure the child’s welfare. If CPS finds evidence of ongoing drug abuse or other dangerous activities, the parent who originally won the custody may lose it this time.
Speak With a Dedicated Massachusetts Family Attorney Today
If you’re not sure whether you have legitimate grounds to seek a drug test for your spouse, reach out to us at Davis Law Group. Our team of qualified family law attorneys will help navigate your child custody case right away, and guide you to the best possible approach to request the drug/alcohol testing. To set up a call with one of the best family lawyers in Massachusetts, call at 617-221-3548 or leave a message here.
James H. (Jay) Davis III
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