Drug Testing

Obeying a Court’s Order directing drug testing is extremely important in order to maintain or advance custody.  This is particularly true if the parent in question has had issues with substance abuse and legal problems caused by this situation.  In M.L.G. v. L.M.G., 2019 Pa. Super. Unsub. LEXIS 32, 2019 WL 101035, the father had substance abuse issues.  The Court ordered the father pursuant to 23 Pa.C.S.A. § 5329 to undergo a drug test.  On two separate occasions the father was directed by the Court to undergo drug testing.  However, on all these occasions, the father failed to submit to a hair follicle drug test at his own expense.   Due to these repeated failures to undergo testing the Court payed hardball with the father and issued the following Order:

“The Court continues to be concerned that Father has continued to disregard this Court’s previous orders of October and November directing that he submit to a hair follicle test. Father is therefore DIRECTED and ORDERED, once again, to submit to the hair follicle test and to have the results forwarded to this Court on or before February 15, 2018. In the event that the Court does not receive any report prior to that date it shall STOP Father’s visitation with the minor child and said visitation shall only be resumed upon a receipt from the testing facility that Father has passed said test.”

The bottom line is that the Court indicated that if the Order was not obeyed, the father should lose all visitation rights regarding his child(ren).  The father appealed this order to a higher Court.

The Court upheld the trial Court’s Order and directive to attend the drug test as a precursor to obtain ongoing visitation rights.  The appeal Court indicated that pursuant to Pa.R.C.P. 1915.8, a trial Court may order a party to undergo any mental and physical examinations it deems fit in actions for custody or visitation, and such examinations do not violate the Fourth Amendment.  The Court referred to Luminella v. Marcocci, 2002 PA Super 410, 814 A.2d 711, 722 (Pa. Super. 2002) a mother could legally be compelled to a drug test. (It should also be noted that the father had some drug related criminal convictions as well.)

So, as a practical matter what does this decision tell us?  First, it is the smart move to submit to all Court Ordered testing.  If you are told to get a mental status exam or drug test, go get one.  Otherwise, you subject yourself to the whims of the Court in removing custodial access.  But also, what does this portend for the parent who does not have the substance abuse problem?  Clearly this case is evidence for frustration on the part of the other parent.  The father was directed no less than three times, one would assume over an extended period.  Basically, the Courts let this father get away with ignoring direct Orders for a long time before they played hardball with him.  This is something to consider.  You should keep good records.  You should make sure that the Court is notified of arrests regarding drug related crimes and bring such information immediately to the attention of your counsel. Most of all know that the wheels of justice grind slowly if you are the victim. f

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