Attorney, Cordell & Cordell
Drug testing is often a point of contention in divorce and particularly modification cases. A client may want to know if his ex-wife, or his ex-wife’s new partner, can be forced to submit to drug tests if he suspects them of using drugs, particularly when they have parenting time with the children.
If there is an issue of drug use, how big of a role does it play in determining or modifying custody or visitation?
If you’re worried about drug use, a party may request that a party opponent take a drug test in many states. Specifically, the state I practice in – Missouri – allows drug testing pursuant to Missouri Civil Procedure Rule 60 (a) (1) provides:
In an action in which the mental condition, physical condition, or blood relationship of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party (i) to submit to physical, mental, or blood examinations by physicians or other appropriate licensed health care providers or (ii) to produce for such examinations such party’s agent or the person in such party’s custody or legal control.
Unfortunately, the party opponent’s significant other cannot be subject to the court’s order under this provision unless they are also party to the action. It is typical that the party requesting the drug test will also be ordered to submit to a drug test.
A positive drug test of an opposing party can be very beneficial and can be the deciding factor in a custody and visitation case. However, it is does not guarantee that a party will be victorious in a custody or visitation matter. The court looks at many factors and statutory provisions when making its decision.
If a party tests positive for drugs, a Guardian ad Litem (GAL) may be appointed if the court feels that the drug use has a negative impact on the children. A GAL is an attorney that is appointed by the curt to represent the children in an action. A GAL may also be appropriate if you suspect that your ex-wife’s significant other is using drugs in the presence of your child.
If you suspect that your ex or that any person that is in a relationship with your ex is using drugs it is best to contact a qualified domestic relations attorney that is licensed in your state to discuss all facts and issues that are applicable to the laws of your state and to your matter.
Cordell & Cordell has men’s divorce lawyers located nationwide.
Andrew VanNess is an Associate Attorney in the Kansas City, Missouri office of Cordell & Cordell, P.C. where he practices family law. Mr. VanNess is licensed to practice in Missouri. Mr. VanNess received his B.S. in Geography with a minor in Biology from Northwest Missouri State University, and his Juris Doctor from the University of Missouri-Kansas City School of Law.
3 comments on “Use of Drug Tests in Divorce”
I’m a Guardian ad Litem who resides in the Austin and San Antonio Tx area. In Texas, attorneys can be a GAL but most of the time it is a mental health professional who specializes in family law, such as myself. In addition, I’m also a licensed private investigator.
From my experience, yes, a non-party cannot be compelled by the court to do a drug test directly, however, the court can mandate that the non-party suspected of drug or alcohol use be forbidden contact with the child. So, if a non-party, such as a step-parent, would have to vacate the residence whenever the child is present. This sacrifice is usually enough to get the non-party to cooperate.
Thanks for your article – it’s good to see how other States function.
OH! and he has also been pro-se in this and apparently has not paid a penny and gotten away with EVERYTHING. NO slap on the wrist even, just an OH, just don’t use illegal drugs when you have your kid from the judge? REALLY? Other party has paid OVER 3K in legal paperwork and has GOTTEN NO WHERE.
Motion to Modify was filed becuase of belief of drug, alcohol and inablility to properly care for child. Goes to court and the father has now had 3 dirty drugs tests in LESS than 30 days and openly admitted in court he uses even when minor child is under his care. Missouri court has DONE NOTHING and has not even agreed to SUPERVISED visitation. This gentlemen is also a felon, no license and has extensive records with probation and parole. He still has joint custody of minor child. How does this happen?