What to Expect in Family Court If You Can’t Pass a Drug Test

What to Expect in Family Court If You Can’t Pass a Drug Test

By M. J. Goodwin


Drug use and abuse are common issues in Family Court. The street drugs that are commonly being used in the Anderson, South Carolina area are marijuana, methamphetamine and heroin. Cocaine is also seen. Loritab and other narcotics are commonly abused or taken without valid prescriptions. Alcohol abuse is also a problem, but is not the subject of this article.

Habitual drunkenness is a ground for divorce in South Carolina. The drunkenness can be the result of alcohol or drug use.  The habitual drunkenness must be the cause of the breakdown of the marital relationship. Among the ways a lawyer can provide proof of drug use to the Court is by witness testimony to the drug use, evidence of drug paraphernalia, private investigator surveillance and arrests or criminal charges. Unlike adultery, habitual drunkenness is not a bar to alimony. However, the court may be hesitant to order spousal support when the money is likely to be spent to support a drug habit.

In the context of a custody or visitation dispute, a drug using parent can expect the following:

*Drug testing to be ordered at the temporary hearing and required to be completed the day of the hearing, maybe within just a few hours of the hearing. The drug testing is usually a 10 panel hair strand test, with hair samples being taken from body hair rather than head hair. If no hair is available to test, nail bed testing can also be performed.

*Drug testing may be ordered to be done randomly and at the discretion of a court appointed Guardian ad Litem.

*Refusal to submit to a drug test will be deemed a positive result for all substances by the Family Court.

*Supervised visitation. It is a good idea to have a supervisor in mind to suggest to the court. Ideally, the supervisor being suggested is a person that the custodial parent will agree is a suitable supervisor.

*Supervised visitation may be ordered to occur in a public place.

*If there is no family member or friend available to supervise the visitation, then a paid supervisor may be ordered.

*The Department of Social Services may become involved with the family.

*A restraining order prohibiting drug use during or immediately prior to any visitation.

*A restraining order as to behavior around the minor child, commonly referred to as Restrictions on Parental Conduct or Judge Brown’s Restraining Orders.

*If subsequent drug tests are negative or show decreasing levels of drug use, visitation times may increase and restrictions may be relaxed.

*Normal, unsupervised contact with the child or children may occur after a substantial period of negative drug tests. The period of sobriety required is usually at least one year.

Society’s views toward marijuana may be changing and it is legal in some other states. However, marijuana remains illegal in South Carolina and will probably remain so for the foreseeable future. A litigant who attempts to argue that marijuana use is “ok” and preferable to alcohol use will not be successful in Family Court. Rather, a litigant should be as conservative, mainstream USA and as clean cut as possible during all Family Court litigation.   The most that a drug user can expect to achieve in Family Court is supervised visitation, with gradually reduced restrictions as proof of sobriety increases.

My best advice to a litigant who cannot pass a drug test is to focus on getting off drugs. As Family Court litigation is extremely stressful, getting off drugs may be even more difficult than it is at other times. However, maintaining the parent-child relationship is hopefully sufficient motivation for a litigant to stop using drugs. Addiction is complex, however, and sometimes the litigant fails in the effort to stop using drugs. For those parents, supervised visitation is the only option that the Family Court is likely to consider to be safe for the child.

If you need help with a Family Court matter in Anderson, South Carolina, please contact me at mj@mjgoodwin.com Email inquiries can usually be answered with twelve hours.




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