Substance Testing Order Enforcement in Colorado Springs Divorce And Child Custody

Are you involved in a Colorado divorce or child custody proceeding involving enforcement of substance testing orders? 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.

Due the right against self-incrimination, the failure to obey an order for substance testing cannot be used as grounds for contempt. C.R.C.P. 37(b)(2)(D). However, the non-compliant party may be required to pay reasonable expenses of the other party caused by the failure to comply including attorney fees, unless the court finds that the failure was substantially justified or that other circumstances make an award unjust. However, the court can take other responsive actions. C.R.C.P. 37(b)(2). Some options are:

(A)An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B)An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C)An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]

Drug or alcohol testing results may or may not be admissible as evidence in Colorado domestic relations cases unless the laboratory analyst is called as a witness. The test reports are hearsay because they are statements other than ones made by the declarant while testifying at a hearing, offered to prove the truth of the matter asserted. CRE 801. Although the “business records” exception in CRE 803(6) might apply in some circumstances, if the analysis has been prepared for litigation, this exception will not apply. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Likely, the person offering the report will have to call the lab technician as a witness or attempt to submit the report under the residual hearsay exception. CRE 807. The best practice is to call the lab technician as a witness to lay the foundation for the resting, reports and to discuss the results.

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.