Drug and Alcohol Testing in Colorado Springs Child Custody Matters

Are you involved in a Colorado divorce or child custody proceeding involving drug and alcohol testing? An experienced Colorado Springs divorce and child custody lawyer can guide you through the legal process and assist you in exploring your options. You have one bite at the apple in the court system so make it count.

Substance abuse by a parent is an important consideration in determining the best interests of the children as related to parenting. It falls under the mental and physical health parenting factor. Substance abuse may implicate issues of whether a parent has the ability to care and provide for the children while under the influence. There can also be collateral issues such as court-involvement, medical issues, or unstable employment.

It is possible to motion for drug and alcohol testing in domestic relations cases. C.R.C.P. 35. However, these requests are more often made by Child and Family Investigators (CFIs) or Parental Responsibilities Evaluators (PREs). Under Rule 35, there must be:

(1) a controversy regarding the mental or physical condition of a party to the case or a person under the legal control of a party to the case;

(2) a motion for good cause shown; and

(3) notice to the person to be examined, as well as all other parties, concerning the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

Evidence is always important. It is often helpful to submit a sworn affidavit in support of a motion for drug or alcohol testing describing the impact of the use on the children. The motion must be filed within a timeframe allowing testing to be complete no later than 28 days prior to the final orders hearing, and the court may make exceptions to this deadline for good cause or to prevent manifest injustice C.R.C.P. 16.2(f)(5). The motion response time is the standard 21 days. C.R.C.P. 121.

If making the request, the motion should specify the type of testing requested and the name of the testing facility. Several types of drug and alcohol testing are available, including urine analysis, breathalyzers, vehicle interlock devices, blood serum analysis, saliva analysis, and hair follicle testing. Many substances are undetectable in urine after 48 to 72 hours, therefore time is of the essence. It is important to provide information to the court about the cost of the requested tests and to specify who is requested to pay.  Also specify the requested testing frequency, duration, access to results. Note that some courts will order both parties to submit to drug tests even in the absence of a request. As with any motion, there is a duty to confer. C.R.C.P. 35, C.R.C.P. 121.

There are different tests for drugs and alcohol. One useful test for current and historical alcohol consumption is Phosphatidylethanol (PEth) testing. It can detect alcohol use over a period of approximately 2-4 weeks. PEth testing is often utilized in legal matters, including domestic relations cases, to assess alcohol use or abuse by a party when such behavior is relevant to parenting, such as parenting time, custody, or child welfare. PEth test results are admissible as evidence if court ordered, however if obtained for personal medical reasons, the results are likely protected and additional measures may have to be taken for admissibility. C.R.S. 13-25-136.

Timing is important. Due to the notice requirement of C.R.C.P. 35, the party to be tested will have time for substances at times to clear before the court can order the testing. An order for random urinalysis can resolve this issue in alcohol use cases. However, hair testing has a longer retention window of 90 days. It can provide more comprehensive information regarding the existence and severity of substance abuse. Note that, alcohol is difficult to detect in a hair follicle sample, therefore trhe hair follicle test is best for drugs. More than one type of testing can be requested. C.R.C.P. 35.

Marijuana and prescription medication testing are more complicated as these are legal substances. The presence of a prescription mediation or marihjuana in a person’s system does not indicate overuse, simply use. If the person is, in fact, prescribed a drug, the presence of that drug is less relevant than if they are not. The same is true of marijuana. Because it is legal in Colorado, its presence in the system is less relevant as an indicator of inappropriate use. Marijuana dosage and potency varies widely and is currently unregulated. As with other types of substances, it is essential to identify the impact of any improper usage on the children. Areas to examine are the parent’s demeanor after consuming the substance, his or her mental health and history, employment history, criminal record, and driving record.

As for drug testing, currently, under Colorado law, a blood sample containing five or more nanograms of delta 9 THC per milliliter of blood gives rise to an inference that the individual is under the influence of one or more drugs. C.R.S. § 42-4- 1301(6)(a)(IV). Levels of delta 9 THC in the blood generally drop below one nanogram per milliliter within 12 hours after a person’s last use. National Highway Traffic Safety Administration, Drugs and Human Performance Fact Sheets, click here.

There are many protections that a court can order. Courts can order parents to refrain from substance use during parenting time, and such provisions are common in parenting plans agreed upon by parents as well. Compliance with a court order to refrain from marijuana use during parenting time can be monitored through blood testing, however the testing is not necessarily practical because it can be inconvenient, time-consuming, costly, and intrusive. Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child Custody

A highly knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find here. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.