Drug Testing in Custody Cases

Concerns about a parent's drug or alcohol use are among the most common issues that arise in contested child custody cases. Texas courts take substance abuse seriously — a parent's use of illegal drugs, or abuse of prescription drugs or alcohol, is directly relevant to the question of what custody and visitation arrangement is in the child's best interest.

How Drug Testing Is Ordered

A court may order drug or alcohol testing on its own initiative or at the request of a parent. Testing is most commonly ordered when:

• A parent has a documented history of substance abuse.
• A parent has been arrested for a drug or alcohol offense.
• Witnesses, medical records, or other evidence suggest current substance abuse.
• A child comes home from the other parent's possession appearing intoxicated, confused, or reporting drug use in the home.

Types of Drug Tests

Courts and attorneys use several types of drug testing in custody cases:

• Urine testing: The most common and least expensive method. Detects most drugs within a few days of use. Easy to attempt to defeat by abstaining just before testing.
• Hair follicle testing: Tests a segment of hair to detect drug use going back 90 days or more. Much harder to beat by short-term abstinence. More expensive than urine tests but increasingly common in custody cases.
• Nail testing: Similar to hair follicle testing; can detect drug use over an extended period.
• ETG alcohol testing (urine): Detects alcohol metabolites for up to 80 hours after drinking — useful when alcohol abuse is the concern.
• Breathalyzer / Soberlink: Some courts order real-time alcohol monitoring using devices that require the parent to submit periodic breath tests, with results sent electronically to the court and the other parent.

Consequences of Positive Tests

A positive drug test does not automatically end a parent's custody rights, but it has significant consequences. The court may:

• Restrict or suspend unsupervised visitation.
• Order supervised visitation until the parent demonstrates sustained sobriety.
• Require completion of a substance abuse evaluation and treatment program.
• Order random, ongoing testing as a condition of maintaining visitation.
• Modify the custody order to reduce or eliminate the parent's possession time.

Refusing to Test

A parent who refuses a court-ordered drug test faces serious consequences. Courts typically treat a refusal as evidence of a positive test — or hold the refusing parent in contempt. Refusing to test rarely makes a parent look innocent.