Crafting Drug Test Agreements in Divorce
When should a Drug and Alcohol Testing Agreement be set up?
If you are co-parenting, divorcing, married, in the process of separating, or in any other way raising a child with another person who has a known drinking or drug problem that may put the child in danger, it is vital to set up an agreement to test for the substances of concern. The time to set this up is as soon as you identify the problem – it doesn’t have to wait until a separation or divorce negotiations. However, if you are currently negotiating other aspects of child custody, it is absolutely essential that you include a drug or alcohol testing agreement as part of the final settlement.
Crafting Optimal Drug and Alcohol Testing Agreements in Matrimonial Cases
Drug and alcohol testing agreements for divorced parents should include 6 critical considerations in order to be effective. Health Street is frequently contacted by lawyers and divorcing parents to figure out how to set up programs for drug or alcohol testing during divorce to ensure the safety of the children. This guide is intended to help attorneys and parents understand the key elements that need to be built into child custody drug and alcohol testing agreements in order for them to be effective.
“Many conservative judges find that the use of drugs, whether or not it can be shown that the use occurred during parenting time, is a significant factor when determining the fitness of a particular parent.” – Dan Miller, Esq., family law attorney, Virginia.
“The use of illegal drugs and overuse of alcohol by one parent could result in a denial of visitation rights or the requirement of supervised visitation.” – S. Keith Rosenthal, Esq., matrimonial attorney, NYC.
How to Structure the Agreement
There are 6 things that should be taken into account when structuring the agreement:
- 1) Frequency – weekly? monthly? random?
- 2) Notification rules – how a request to test is made, and by whom?
- 3) Specimen type – urine? hair? blood?
- 4) Drugs to include – opiates? alcohol? cocaine? benzodiazepines?
- 5) Reporting requirements – who gets the results?
- 6) Payment responsibilities – who pays?
How often should the tests be done, and should they be scheduled, random, or on-demand? The agreement should stipulate the frequency of testing, such as weekly, biweekly, or monthly. Common options include: weekly random urine tests for drugs or alcohol; monthly hair tests (which have a longer window of detection than urine); and periodic random testing (for example, once every 2 weeks at a randomly selected time). Less frequently used choices include: pre-custody testing (for example, a parent must pass a Breathalyzer every time she is about to pick up the kids); post-custody testing (immediately after any period of custody); and spouse-initiated testing (at any time one spouse wants to request the other test).
2) Notification Requirements
How is the parent notified that they must appear for testing, and how soon after must they appear? The agreement should be crystal clear about this, so as to avoid parents claiming they weren’t notified properly. Common options include: using a third party such as Health Street to notify the parents by phone, email, and/or text message in the morning, and requiring the parent to appear that same day for testing.
3) Specimen type
Should the test be done via urine, hair, breath, or blood? The agreement needs to specify the specimen type, each of which varies in their window of detection and purpose. Urine drug tests are most common, but they only pick up recent usage. Hair tests go back much longer – up to 90 days. Breath alcohol tests are sometimes indicated, as it is the only test to pick up current intoxication. On the other hand, blood alcohol PETH tests go back 3 weeks.
5) Drugs to include
Basic drug tests only pick up 5 drugs, and there are literally dozens of tests to choose from. It is critical that the agreement specifies which testing panels are required. We recommend that this is based on intimate knowledge of the parents’ likely drugs of choice, taking into account that they may choose other drugs in the future to avoid detection if a comprehensive panel is not required.
5) Reporting of Results
What are the specific rules for reporting the results? Typically, both parties should receive all results. Frequently, the attorneys also get copies of the reports, and sometimes, the court requires a copy. There may even be consequences tied to the results, such as, “in the case of a positive test, visitation is suspended for a 30 day period”.
6) Payment Responsibilities
Who pays? Obviously, the agreement should spell out who is responsible for bearing the costs of the testing. There are 4 common choices here:
- a. The person who takes the test must pay for it.
- b. The person who requests the test must pay for it.
- c. All tests are split 50/50.
- d. The person who requests the test must pay for it, but is reimbursed by the other party in the case of a positive result.
Common Drug and Alcohol Tests required by Divorce Agreements
Every situation is unique, and the tests ordered should be based on the specifics or the people involved and the drugs they are known to use or have used. Nevertheless, here are some of the most common tests that we see are included as part of these settlements:
- 3 Day EtG Alcohol Test>
- 12 Panel Urine Drug Test
- 5 Panel Hair Follicle Drug Test
- 90 Day Hair Alcohol Test
Health Street Can Help
Health Street helps attorneys and parents set up drug and alcohol testing programs during divorce, and we are frequently designated to administer the random testing programs for extended periods of time. Feel free to call us at 888-378-2499 for more information or to discuss setting up a program or having us administer drug and/or alcohol testing on an ongoing basis pursuant to an agreement you have already executed.