Drug Testing During Child Custody Battles

Drug Testing During Child Custody Battles

There are 3 basic drug tests that can be asked for during a child custody action. Although conceivably a blood test could be requested, I have never seen one given during a child custody case. This leaves 3 kinds of tests available: 1) Drug testing by urinalysis, 2) Drug test by hair, 3) Drug test by fingernail. While I was working as a Guardian ad Litem, I have had a lot of practical experience in this area, either asking the Court for drug testing by my request or concurring with the attorney requesting it. While working as a private investigator, we have gathered evidence which has persuaded the Court to immediately order drug testing for an impaired parent or to withhold visitation with the children until the impaired parent receives drug or alcohol treatment.

Urinalysis

Urine tests are the most common and least expensive drug test, likely costing around $25 – $30. They can detect most of the common drugs of abuse but lack the ability to determine the use of drugs for more than about a week out , except in the case of cannabis abuse which can go about 30 – 45 days out for heavy users. I usually consider urinalysis tests only practical for catching pot smokers since most people will tend to clean-up a few days prior to court. However, they are good for giving some idea of when they might have last used drugs especially if the urine test is used in conjunction with a hair or fingernail test. Although not as easy as one would think, there are countermeasures to fool a urine drug test. Drinking lots of water prior to the test can dilute the sample so much that would make the testing sample invalid. However, if one was to do this, the test designers also tests for Creatine levels, an amino acid that the kidneys throw off when excessive water is drank. Although it is possible to have an abnormal amount of Creatine in the urine without excessive hydration such as in renal failure, it is most often a sign that one is purposely drinking water to the point that they are throwing their entire electrolytes way out of whack by drinking excessive water. If this were to happen, most of the time the test will be considered invalid and the individual would be asked to test again while being instructed not to drink much water prior to the test. Most of the countermeasures sold in head shops are simply mild to moderate diuretic preparations that will dilute the sample when used, making the test either invalid or not unusable.

 

Hair Test

A hair test can detect the same drugs as a urine test but for much much longer, usually about 3 months out. The lab attendant will gather hair (about the diameter of a pencil) from a person’s head for this purpose, although hair can be gathered from anywhere off the body. However, I know of no labs that will gather a specimen from the pubic regions – that is where they draw the line. The hair is then melted in a way which forms a solution and is tested as such. Although the hair test may tell if the person has used drugs, it is not good at telling when they might have used drugs within the last 3 months or in what quantity. Additionally, a hair test may not show very recent one-time use of drugs since it takes a day or so for the drug to lodge in the hair shaft after a drug is ingested or inhaled. Using a hair test in conjunction with a urine test can give a better frame of reference of when a particular drug was used, showing both short term and long term use.  It is not that uncommon to ask the Court for both kinds of tests. A hair test usually costs between $200 – $300 but is sometimes cost prohibited if the party is indigent. Be prepared to pay for the other party’s expense for the hair test as a way to counter the argument that they cannot afford it. Usually, the parties will agree ahead of time that the requesting party will pay for the testing initially but if the test is positive, the requesting party is to be reimbursed by the offending party. Do not expect for the court to pay for drug testing except in rare occurrences. There are only a couple of countermeasures for a hair test.  Some head shops will sell shampoos that have dubious effectiveness, essentially cleaning and stripping the hair of impurities. Since the drugs in question are located inside of the hair shaft, it is unlikely that shampooing the hair alone will have little effect.  However, the residue that is left on the hair after shampooing could conceivably interfere with the chemical composition of the sample medium, making it more difficult to detect drugs of concern – or at least that would be the hope of the creators of these shampoo countermeasures. Most of the labs will tell you that the shampoos do not work but I have no empirical evidence either way. I have seen cases in the past where I was absolutely sure that the person used drugs, but unexplainably the person showed negative for the hair test. I make the assumption that this may be due to the hair test having a higher threshold of detection as a way to ensure no false positives. The only other countermeasure for a hair test is to completely shave your head and  body, which I have seen done. The excuse for this is “I’m a swimmer.”  Of course, this makes the Court very suspicious and we all know what the person is really trying to accomplish – but still, legally we can’t prove it. But there is still another option.

Fingernail Test

A fingernail test can detect all the drugs tested for by urinalysis and by hair test but for up to 6 months out. Like the limitations of the hair test, it will not indicate if drug use was a day or two out or 6 months ago. They are about a $100 or so more than a standard hair test. Again, using a urinalysis in conjunction with a nail test may give a better idea of when drugs were used during this 6 month period. I have never seen a urinalysis, hair test and a nail test used together, likely because it would be cost prohibited and an argument could be made that such actions would be excessive if not intrusive. The fingernail test is a great alternative for someone trying to be tricky with urinalysis and hair testing.  The party requesting a nail test should surprise the other party in court and ask the judge to admonish the other party NOT to cut his fingernails or toenails prior to testing. The court may take notice of the length of offending party’s nails prior to leaving court so that there is no doubt the person’s nails are long enough for testing. Smart attorneys will sometimes have a mobile lab professional in the courtroom and will ask the judge to tell the offending party to have it done right then and there. Using this method, I have no knowledge of any practical countermeasures.

Alcohol

None of the above tests are suitable for Alcohol – alcohol is short lived in the body and will be completely out of one’s system within 12 hrs. A breath analyzer test is the only practical way to discover alcohol.

Breathalyzer_on_citizen

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