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FAQs About Drug Testing in Family Law Cases

Thomas A. Greenwald | March 12, 2024

If the court suspects that one or both parties involved in a family law matter are using drugs, it may request that a drug test be administered. The goal of drug testing is to ensure the well-being of everyone involved, especially any children in a custody case. Here are some of the most common questions we get about the court-ordered drug test procedure in family law cases.

Can a Judge Order a Hair Follicle Test?

Yes. If sufficient evidence is presented to cause a judge to believe that illegal drug use is an issue in a case, the judge may order any type of drug testing of one party or both parties, even without a formal request from either party.

Will I Know in Advance if I Need to Take a Drug Test?

No. In most cases, you are entitled to know what the opposing party is asking the judge to do in a particular case, but a request for a court-ordered drug test in a child custody case is an exception to this rule. Because the court realizes that the element of surprise can be important when people are being tested for drug use, a judge may allow one party to ask for the other party to be tested without a formal request being filed in advance of the hearing.

When Will I Be Tested? Do They Drug Test You at Court?

In drug testing, a day or an hour may have a significant impact on the test results. Judges will typically order you to submit to a urine, hair, and/or nail drug test within hours of the court hearing. The opposing attorney may even have an employee from the testing facility in the courtroom to conduct the drug test in the courthouse immediately after the hearing.

What Kind of Drug Test Do Courts Use?

The type of test ordered by the judge will depend on the allegations in your case, including the type of alleged drug use and the alleged frequency of drug use. In almost all cases, a judge will order a urine test. The judge may also order a nail test for drugs or require hair follicle testing in custody cases.

How Far Back Can a Drug Test Show?

The window of drug detection varies depending on the type of drug, the amount of the drug ingested, and the frequency of use. For a urine test, drugs often show up for around three days, but marijuana may show up for as much as 40 days. For a fingernail drug test, drugs may show up for three to five months, but for a nail test that includes the toenails as well, drugs may show up for eight to 12 months. And for a body hair test, drugs can show up for up to 12 months.

Can a Hair Follicle Test Go Back 12 Months?

No. Hair follicle tests typically go back about three months.

Are These Drug Tests Accurate?

As a general rule, judges accept drug test results as accurate and reliable, whether it’s a urine, hair, or nail drug test.

Can the Other Party “Beat” a Drug Test?

They can try, but the people who administer drug tests are smart enough to catch them.

Clipping nails down to the quick, shaving head and body hair, drinking a lot of water before a test, adding adulterants to a specimen, and using someone else’s urine are just a few ways test subjects have tried to cheat on a drug test to get a negative result.

But clipping nails and shaving head and body hair are obvious signs that a party is trying to interfere with drug testing efforts. Urine specimens are checked by the testing facility to determine whether they’re diluted, so drinking a lot of water before the testing will invalidate the test result. The specimen will also be checked for adulterants intended to alter the test results; if adulterants are noted in the specimen, the sample will be rejected. And if the temperature of the specimen is too high (which indicates an effort to artificially warm the specimen) or too low (which indicates that the specimen is not a recent sample), the specimen will be rejected as well.

Products formulated to beat a hair test, such as shampoos and bleaching agents, can sometimes work, but products marketed for urine tests or nail tests are less effective. That’s why hair tests are often used alongside other methods. If a urine test is positive for drug use and the hair test is negative, the inconsistency in the test results and/or drug levels may be an indication to the testing facility and the judge that the hair specimen has been altered in some way.

What Should I Do if I Think I May Be Drug Tested?

Seek the advice of an attorney before you testify in court. If your attorney allows you to answer questions about your drug use, you must tell the truth. Lying in court under oath is perjury and may subject you to criminal penalties and civil sanctions. If you are using illegal drugs, stop. If you need assistance in stopping your drug use, contact your doctor or a mental health professional for a referral.

Get Help From an Experienced Divorce and Child Custody Attorney

Tom Greenwald is an experienced trial lawyer with 30 years of family law experience. He has been named Family Law Lawyer of the Year in Dallas/Fort Worth by Best Lawyers and named to the “Best Lawyers in Dallas: Family Law” list by D Magazine six times, including 2022. Tom brings specialized expertise to complex divorces, including knowledge of compensation structures, property division, dealing with private business interests, separate property claims, business valuation, and child custody. His goal is to help clients find efficient and constructive solutions that will enable them to save money and maintain good working relationships in the future.

To learn more, contact Tom Greenwald at (214) 833-7760.

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