Drug Testing in NY Divorce and Family Court Cases
If are you are a litigant in a New York State family court case, or in a divorce pending in a New York Supreme Court you can be subjected to a mandatory drug test with the results reported directly to court, and to counsel.
A request for a drug test can come up if there are allegations on either side of either alcohol or drug use or drug abuse. Generally, it has to be more then a bare-bones request and there has to be some merit behind the request. The parties have to be acting in good faith. The Judge will generally order that both parties submit to mandatory drug tests. A family or divorce lawyer whose client is the subject of a mandatory drug test will want to investigate whether this claim has any basis or is merely an attempt to harass the other side. One strategy is to request that the requesting side pay for the drug tests, or in the alternatively pay for it if it yields negative results.
A common misconception is that a party subject to a mandatory drug test can refuse based on his or her constitutional right not to incriminate yourself. However, the the constitutional right against self-incrimination deals only with criminal charges not in civil matters regarding custody and visitation.
A positive test result for drugs is a valuable tool to the party seeking custody and/or supervised visitation. The more one parent uses drugs or alcohol the more the court will likely favor the other parent. A positive result can be evidence that you are unfit to be the custodial parent and/or to have unsupervised visitation. The Judge will have fears that the child can be exposed to the parent drunk or high on drugs and can be neglected. Further, the Judge might have concerns that the child will be subject to behaviors that often accompany drug and alcohol abuse.
If the party seeking visitation has a history or drug or alcohol abuse, the opposing side can request that prior to any visits the party undergo a drug test. If the party fails the drug test, they can forfeit that visit. If there are a certain number of failed drug tests, then the party can lose their visits altogether.
However, it is not the use along that is the issue – it is the effect of the drug and alcohol use on the parents ability to raise the child. There is case law in New York that will favor the parent with a history or drug and alcohol use over a parent who has no meaningful interaction with the child. The court will also look to see if the parent with a history or alcohol and drug use has been pro-active in keeping clean, in getting help, etc.
Generally, in New York the Judge will request a urine analysis and a hair follicle test.
Urine Analysis in NY Family Court or Divorce Cases
Generally, the way urine analysis works is the patient will take a small clear cup into a bathroom and an employee of the drug testing company will stand outside the bathroom. Upon receipt of the sample, they will test the temperament of the sample to make sure it has not been tampered with and then send it in for testing.
Hair Follicle Test in NY Family Court or Divorce Cases
Generally, the way the hair follicle test works is the patient will have a small amount of the hair taken from their head or other part of their body and it will be sent for testing.
The 2 facilities that are often used in New York City are Quest Diagnostics and Bendiner & Schlesiner, Inc. However Bendiner & Schlesiner, Inc. has now switched their testing over the Labcorp