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The Element of Surprise: Drug Tests in Texas Divorces or Custody Case

Aimee Pingenot Key | August 5, 2015

For many, divorce can be full of surprises. Sometimes, even the fact that you’re getting divorced comes as a surprise. Our Dallas, Plano and Austin divorce lawyers at Goranson Bain Ausley work hard to help mitigate the surprises, but there is one aspect of a divorce when sometimes the surprise is very strategic.

Drug tests can radically change the outcome of a divorce proceeding or custody case — but since most people who are addicts or abusers know how to pass basic drug tests, the element of surprise can be an invaluable tool in catching drug use. Our attorneys are able to assist parties who hope to surprise someone with a test or who need help after a surprise test has gone wrong.

Can They Do That?

Often, people are shocked to hear about this “surprise.” If you’re on the receiving end of an order to submit to a drug test, it may seem as though a surprise test would be illegal. However, in Texas, such tests are legal. Essentially, a surprise drug test means that the court tells a person during a hearing that they will have to submit to a drug test right then and there or within an extremely short period of time.

If the order is to submit to the test immediately, the judge will often have a bailiff or other officer prepared to administer the drug test before the person is able to walk out the door. This is particularly useful in the case of urinalysis or when the person being tested is an alcoholic who shouldn’t be drinking, since alcohol can typically only be measured during a narrow window of time.

In instances where the person has a limited amount of time to submit to testing, the time-frame may be a short number of hours. Another method of making sure the person doesn’t circumvent the test is to take a test that involves testing hair, a nail clipping, or nail shaving. While urinalysis goes back only a few days at most for harder drugs, a piece of hair or nail can tell the courts if the person used drugs in the last three months and even up to the last twelve months in some cases.

Consequences of Failing a Surprise Drug Test

The main reason a judge will order a surprise drug test is because there are concerns about the best interest of the child or children in a divorce or custody case. Another reason may be if there have been problems with domestic violence that have been fueled by drugs or alcohol.

If a parent fails a surprise drug test, usually the outcome is that he or she loses custody or visitation rights, at least on a temporary basis. The court may order supervised visits, which means the parent can only spend time with the child or children if another, trustworthy adult is present. This means failing a surprise drug test may result in never spending time alone with your children — or at least not until you can prove to the court that you’ve overcome the problem. Other times a parent is required to submit to future drug or alcohol testing and monitoring to ensure the parent is not using illegal drugs or alcohol prior to visitation with the child or children.

It is crucial to work closely with an experienced attorney if you suspect a surprise drug test is the right avenue to protect your child or if you need to show the courts you are on the road to recovery. Contact us today to discuss the particulars of your case.

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