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So, you’ve been ordered to take a drug test.

You are going through a divorce, or maybe you have filed for custody or are fighting to keep custody; the other side says they are fearful for the safety of your child if you have them because, “Your Honor, we have some concerns, we need a drug test”.

When you are happily married or even just getting along with your co-parent, drug use may or may not be a concern. Once the Court is asked to determine child custody any drug use becomes an issue almost certainly to be raised by the other side and to be dealt with by the Court. OCGA 19-9-3 (a)(3)(Q) provides that the Judge must take into consideration “[a]ny evidence of substance abuse by either parent” when reviewing child custody. This means the Court may be required to investigate any mention of drug use.  Ordering a drug test is often the first step.

If the court orders a drug test, take it. If the Judge asks you whether you do drugs, and if so what, answer honestly. Taking accountability in Court works to counteract any stigma that attaches to drug use: that is not to say that being honest makes drug use a non-issue, however being honest shows you are a credible person and helps to cast your testimony and evidence as credible as well, which is crucial when trying to convince a judge to do what you would like them to do.

Ideally you want to be able to return a clean drug screen to assuage any concerns, if a positive test does come back, first of all, you’ve been honest with the Court so it is no surprise (good for you), then it is important to get with your attorney to document and discuss when, why, where, and around whom the drugs were used. Context is important, it is the impact on the child by drug use that is relevant to the Judge’s determination of custody and context can help to provide a clearer picture of what is really going on, or can serve to highlight changes that need to be made to align your actions with your goals regarding custody.

If you do test positive for drugs; make a plan to stop using if at all possible, acknowledging that you are ultimately responsible for helping to achieve your custody goals. Seek out resources available in the community and talk with your healthcare providers about your options. If you believe that you have received a “false positive” it is imperative that you submit to further testing immediately; false positives happen but the way to handle them is not to swear up and down you didn’t do it, it is to take another test and to get a negative result to be able to present to show that the test was a fluke.

There are many potential implications of testing positive on a court ordered drug test: a Judge can determine that your drug use poses a danger to the children at issue and can change custody and deny you visitation with your children or limit your visitation to supervised visitation in an effort to protect the children and prevent any adverse impact from any drug use. Remember, Judges have a very limited scope of knowledge on you, your children, and your family dynamics – first and foremost a Judge is going to want to keep any children involved as safe as they can and this can be a driving force behind restricting access to children; giving a Judge evidence that you are not a threat to your child’s safety is vital as the court can only start to entertain who has what visitation when if the court is convinced that both parties can provide a safe environment for the child.

If you or someone you know is preparing to go through a divorce with minor children or a modification of custody action and drug use could be raised as a concern by either party, reach out to The Manely Firm, P.C. Our experienced family law attorneys can help chart a path towards your child custody goals.

Felix Kloc