Can a court order a parent to undergo indefinite testing for illegal or controlled substances as a requirement for visitation? The answer is yes, according to a recent California Court of Appeal case that originated in Los Angeles County.

In this case, a mother lost custody of her young son after she was arrested and tested positive for controlled substances, and also was found to be intoxicated while she had custody of her son. Though the mother successfully completed an outpatient drug and alcohol program, attended 20 Alcoholics Anonymous meetings, and participated in a parenting course, the family court was still unmoved to modify the order requiring her to undergo indefinite testing for illegal and controlled substances.

What the Law Says

California Family Code section 3041.5 provides the following in pertinent part: “In any custody or visitation proceeding […] the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of the evidence that there is habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent […] This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance. The court shall order the least intrusive method of testing for the illegal use of controlled substances […] or the continual abuse of alcohol […] A positive test result, even if challenged or upheld, shall not, but itself, constitute grounds for an adverse custody […] determination. The result of testing may not be used for any purpose […] except to assist that court in determining, for purposes of the proceeding, the best interest of the child […] and the content of the order or judgment determining custody or visitation.” [Emphasis added.]

What the Court Said

The Court of Appeal affirmed the family court’s order, reflecting the legal requirements described above, for the following reasons:

• The family court found the mother had a drug and alcohol problem that caused her arrest;
• The family court, relying on the opinion of a physician, found that the mother had an addiction, which included a pattern of abusing prescription drugs and “doctor shopping” to obtain those drugs; and
• The family court expressly found a continuing concern regarding the mother’s risk of relapse unless she was under strict controls with respect to drug and alcohol abuse.

In its own interesting opinion, the Court of Appeal found that there is indeed no “bright line rule” distinguishing when a “habitual, frequent, or continual” abuser of drugs and alcohol (to use the words of the Family Code) is in fact no longer one.

Rather, the Court of Appeal noted that “common sense” requires that the family court look to a “totality of circumstances” to determine whether the risk of a relapse requires close scrutiny or not. In fact, the Court of Appeal observed that the Legislature considered the risk of a parent relapsing into drug or alcohol addiction by including language requiring the family court to consider a “conviction within the last five years for the illegal use or possession of a controlled substance”.

The Court of Appeal found that a family court indeed has the authority to order drug or alcohol testing to continue indefinitely as a condition to further visitation. The Court held that the fact that the Family Code is silent regarding the duration of drug and alcohol testing means a court can order that the testing may continue indefinitely if the evidence warrants such an order.

What It Means

This case proves, yet again, that when it comes to the best interests of children, a family court has great authority to implement orders to protect the child, even if the risk of a parent’s drug or alcohol relapse is merely speculative.