A court ordered drug test is necessary in parenting matters where parents expose the children to potential harm by abusing drugs.
In Australia, family law cases have witnessed an increase in parenting matters where a parent abuses some kind of drug, alcohol, or any other illicit substance. This becomes a major concern for courts when the child is exposed to harm, or potential harm because of the use of drugs by parents.
Generally, the use of drugs by a parent leads the court to assuming that the parent has no parental capacity to take care of the child, and considering the child’s best interests, the court makes orders accordingly. In this matter, one of the primary considerations of the child’s “best interests” is highlighted, which is as follows:
According to Section 60CC of the Family Law Act, one of the primary considerations is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
Essentially, under family law – a court ordered drug test is involved in child custody cases, and other parenting matters.
Court Ordered Drug Test: Explanation
A court ordered drug test is a type of a court order wherein the parties involved will be required to submit to a drug test. The results of the drug test can greatly influence child custody decisions.
During custody matters, or general parenting matters, if one party raises the concern that a parent is abusing drugs or any other illicit substances, a court ordered drug test will be made against the parent.
A court ordered drug test can be made in different circumstances. For instance:
- If the court itself worries, and has a suspicion that a child is being exposed to harm, and his/her safety is at risk because his/her parent is abusing drugs; or
- If one party in the matter has approached the court citing that the other party abuses drugs; or
- If Independent Children’s Lawyer (ICL) request that a court ordered drug test be undertaken by one parent. The ICL is the judicial body that represents the needs and interests children who are involved in a parenting or custody dispute.
How Is The Court Informed About Potential Drug Abuse By A Parent?
Generally, the party who wishes to raise the concern that the other party is abusing drugs, or other illicit substances, and thereby exposing the child to harm does so by filing a ‘Notice of Risk’ of ‘Notice of Family Violence.‘
This document will consist information about any allegations against the party, including any risk that the party thinks the child is being exposed to. This document will also consist of information about alcohol or drug abuse, or use of illicit substances.
Once this application is made, the other party is required to take a court ordered drug test. However, the court can exercise its discretion in deciding whether or not a drug test is necessary.
Importantly, in the instance where a court ordered drug test is made against a party who refuses to take the drug test – the court will assume a positive drug test – and make court orders accordingly.
The type of drug test, and the duration of drug testing can vary from case to case. The following sections will discuss the types of court ordered drug test.
What Are The Types Of Drug Test The Court Can Order?
Depending on the type of case, and more importantly, the type of drugs that the court wants to test for, court ordered drug tests can be of the following types.
- Urine Analysis
A urine analysis, also termed as urinalysis or urine testing is one of the most common types of drug tests. This includes a supervised urine analysis test, which can be either ordered at random, or when concern about drug use has been raised.
- Hair Follicle Test
This type of court ordered drug test is especially useful to determine the pattern of drug abuse. It can indicate drug abuse by a person over a long period of time, including three months (90 days) in some cases.
Through this test, a person’s hair sample is tested. Moreover, this test can also reflect if the person uses one drug or several drugs.
- Alcohol Test Or Blood Test
Alcohol tests are usually conducted in the form of blood test which can check the person’s liver for signs of alcohol abuse, or liver damage.
If the test reveals significant liver damage, it is an indication that alcohol is being consumed in high amounts, and for a long period of time.
What Happens In Case Of A Positive Drug Test Result?
In case a court ordered drug test yields a positive result – the court will make orders around parenting and custody matters by taking this into consideration. Depending on the unique circumstances of the case, the court will make an appropriate order.
A positive drug test result does not mean a suspension of child custody. If a parent is found to be using drugs, the court will first gauge if drugs were being used for recreational purposes, or as a result of an addiction to drugs.
Because an addiction to drugs often leads to mental instability, and emotional unavailability, it can have severe impacts on the psychological health of the person using the drugs. This, in turn, can negatively affect the relationship between that parent and the child.
In making decisions, the court will take all such things into consideration. The court may allow supervised visits with that parent, at least until the parent is able to produce a negative drug test result.
How Can JB Solicitors Help?
Family law cases involving alcohol, or drug abuse are complicated and stressful. Having legal representation in courts, and gaining legal advice for your matter is very important.
At JB Solicitors, our family lawyers can help you navigate through the complex court procedures where drug allegations are involved.
We understand our clients’ needs, and the needs of their children, and are dedicated to providing high-quality legal services. Our fixed-fee pricing for family law will give you a clear sense of the costs right from the start.
Contact our experienced and friendly family lawyers today.
