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COMMENTARY
The impact of drug and alcohol testing
on child custody evaluations
Elisa Reiter and Daniel Pollack｜ October 23 2024
Drug and alcohol testing have become common practice in a variety of settings,
including child custody evaluations. Parents sometimes accuse each other of not
only drug use, but of suffering from addictions that impair parenting ability.
Understanding the mechanics of drug testing, dispelling common myths about the
(in)ability to circumvent such tests, and recognizing how drug test results can
influence custody cases is crucial. Some cases merit monitoring via immediate
and/or ongoing random testing, and there are instances where such demands prove
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unnecessary. In these cases, the accuser’s actions can have significant
repercussions regarding custody of minor children. It is essential to examine the
role of drug and alcohol testing in custody evaluations, its implications, and the
potential consequences on the parties involved.
The Mechanics of Drug and Alcohol Testing
Drug and alcohol testing involve analyzing biological samples to detect the
presence of substances or their metabolites. Several testing methods are commonly
used:
Urine Testing
Urine testing is one of the most frequently used methods due to its relative ease
and low cost. It can detect recent drug use, typically within the past few days for
most substances. The process involves collecting a sample and subjecting it to
screening tests, often employing immunoassay techniques. Positive results are then
confirmed using more specific methods such as gas chromatography and/or mass
spectrometry (GC/MS). Evaluators must be cognizant that there are testing
facilities that may not monitor all aspects of collecting the sample, and that there
are nefarious people who may attempt to smuggle synthetic urine or a sample
provided by a friend. If a positive result comes from that bogus sample, that’s
when the errant party’s attorney hears something like, “But she told me she was
clean!” Moreover, if creatinine levels are “off,” it is prudent to question whether
the person being tested has flooded their system with water, seeking to skew the
test results.
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Hair Follicle Testing
Hair follicle testing can detect drug use over a longer period, typically up to 90
days. This method involves analyzing a small hair sample, usually taken from the
scalp. Hair testing is particularly useful for detecting patterns of chronic drug use.
Toenail Testing
Toenail testing is less common but can provide an even longer detection window,
potentially up to 12 months. This method is particularly useful for detecting long-
term substance abuse patterns. If the person presenting for a sample suddenly has
fake nails, or has trimmed their toenails as low as possible, this may be a yellow
flag.
PEth Testing
PEth testing is a direct biomarker of alcohol consumption that forms in the blood
only when ethanol is present. A PEth blood test measures the level of phosphatidyl
ethanol, which bonds to red blood cell membranes after ingesting alcohol. PEth is
a more sensitive test than other common screening techniques, and can detect
alcohol use for up to four weeks after consumption. PEth is not affected by age,
gender, liver disease or other health conditions, and involves taking only a small
blood sample.
Myths About Beating Tests
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Despite numerous claims about foolproof methods to beat drug tests, most of these
myths do not hold true:
Myth 1: Drinking excessive amounts of water will dilute urine and mask drug use.
Reality: While dilution can lower drug concentrations, lab tests include testing for
diluted samples, and may consider diluted samples invalid. Good evaluators and
lawyers should know what “normal” creatinine levels are in order to cross examine
and or deflect criticism of results.
Myth 2: Using detox products can cleanse the body of drugs.
Reality: Most detox products are ineffective and fail to remove drug metabolites
from hair or nails. There will still be those who surf “the dark web” for detox
products, purchase and ingest detox products in an effort to beat drug tests.
Myth 3: Secondhand marijuana smoke can cause a positive test result.
Reality: While potentially conceivable, the amount of exposure required to produce
a positive result is extremely rare.
Impact on Child Custody Evaluations
Drug and alcohol test results may significantly influence child custody evaluations.
Courts prioritize the best interests of the child when making custody
determinations. Evidence of substance abuse can raise serious concerns about a
parent’s ability to provide a safe and stable environment for their child(ren).
Because marijuana is legal in an increasing number of states, judges hold differing
opinions about the impact of marijuana use. A single positive drug or alcohol test
may lead to temporary restrictions on custody of or access to and possession of
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children. Courts will consider patterns of use as well as a parent’s willingness to
address substance abuse issues when making long-term custody decisions.
Case Studies/Law Modernizing
In Re L.J.B.: In 2020, the Pennsylvania Supreme Court held that Children & Youth
agencies cannot compel a parent to submit to a drug screen as part of a child
welfare investigation. Interviewing the child, the child’s parents and/or caretakers
are certainly part of the process, but the Pennsylvania legislature may not have
contemplated mandatory drug screening as part of that investigative process.
Particular focus was placed on pregnant women using opioids during pregnancy.
From the majority opinion:
We address here … whether a woman’s use of opioids while pregnant,
which results in a child born suffering from neonatal abstinence syndrome
(“NAS”), constitutes “child abuse” as defined. We conclude, based on the
relevant statutory language, that a mother cannot be found to be a perpetrator
of child abuse against her newly born child for drug use while pregnant. We
therefore reverse the decision of the Superior Court and remand the matter
for reinstatement of the trial court’s order…
Moreover, once labeled as a perpetrator of child abuse, the likelihood that a
new mother will be able to assimilate into the workplace and participate in
activities of the child’s life would be diminished. This would contravene the
laudatory goal of preserving family unity and a supportive environment for
the child.
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In the case of In Re D.R., the Supreme Court of Pennsylvania (Western District)
held that: “the Agency’s authority to investigate does not include the authority to
obtain an involuntary urine sample from the subject of the investigation.”
By contrast, in 2023, the Supreme Court of Washington held that it was not an
error for the trial court to “draw a negative inference from the mother’s refusal to
answer specific questions about her drug use.”
A legislative update to the Texas Family Code in 2021 prevents the Department of
Family and Protective Services from removing a child solely based on a parent
testing positive for marijuana. The ratification of this provision reflects a societal
shift toward a more lenient approach to evidence of marijuana use in custody
cases. However, where a parent’s marijuana use “causes significant impairment to
the child’s physical or mental health or emotional development,” removal can still
be considered.
Extracting something out of someone’s body – like a urine or blood sample –
potentially encroaches on that individual’s Fourth Amendment rights. These cases
and legislation help highlight the need for balancing child safety with protecting
parents from unfair accusations or invasions of privacy. The use of substances
such as Delta 8 and Delta 9 also compound issues related to testing.
Best Practices
To ensure fair and effective use of drug and alcohol testing in custody cases,
several best practices should be considered:
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1. Use testing only when there is reasonable suspicion of substance abuse that
could impact child welfare.
2. Employ reliable, scientifically validated testing methods.
3. Interpret results in the context of overall parenting abilities and child safety
and well-being.
4. Provide opportunities for rehabilitation and demonstrating changed
behavior.
5. Protect the privacy and dignity of all involved.
Conclusion
Drug and alcohol testing can play a crucial role in child custody evaluations,
providing objective evidence of substance use that may impact a parent’s ability to
care for their child. However, it is essential to approach testing with caution,
recognizing the limitations of testing and the potential misuse of testing. Although
myths about beating drug and alcohol testing persist, most are ineffective or are
easily detectable. Courts, child custody evaluators, and attorneys must rely on
scientifically valid testing methods and interpret results in the broader view of
parenting ability and child welfare. The goal of drug and alcohol testing should be
to protect the personal safety and emotional development of children while
assuring that parents are treated fairly.
Elisa Reiter, a Senior Attorney with Calabrese Budner, LLP in Dallas, Texas, is
Board Certified in Family Law and in Child Welfare Law by the Texas Board of
Legal Specialization. She has served as an Adjunct Professor at SMU. She is also
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admitted to practice in the District of Columbia, Massachusetts, and New York.
Contact: elisa@calabresebudner.com.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of Social
Work in New York City. He was also a Commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon commission
created to examine the institutional responses to sexual grooming and abuse by
former USA Gymnastics physician Larry Nassar. Contact: dpollack@yu.edu.
Original link: https://www.law.com/texaslawyer/2024/10/23/the-impact-of-drug-
and-alcohol-testing-on-child-custody-evaluations/