In a word, yes, drug tests can be ordered, but they do not have unfettered discretion to order tests at their whim. The cases in New York have held that when the physical and mental state of a parent is in question the New York Civil Practice Law and Rules can support a test request. Case law helps to outline situations where getting drug tests in custody and family law cases are allowed and not. The court required hospitals to produce medical records of a mother pertaining to her treatment for alcohol and drug dependency in DeBlasio v. DeBlasio, 187 A.D.2d 551 (2nd Dept. 1992). In that case the records were sought from three different hospitals that were not themselves parties to the case. The reasoning cited by the court for the production was that the mother’s interests in confidentiality were outweighed by the need of protecting the children’s well being. In the case of Burgel v. Burgel, 141 A.D.2d 215 (2nd Dept. 1988), the court ordered a mother to go to a doctor’s office to give hair samples for drug testing. In this case the father, in a divorce, alleged that the mother was using cocaine. The mother admitted past use but claimed she was currently clean. The court held that in a custody dispute the mental and physical conditions of the parents were at issue and the information was relevant to determine parental fitness and whether the mother was being honest about her current use. The past use of drugs and the children’s best interest were stressed by the court as justifying the test. The court has denied the tests when there was no reasonable ground for the testing. In Garvin v. Garvin, 162 A.D.2d 497 (2nd Dept. 1990) the court compared the facts of that case to the above cited Burgel v. Burgel. In denying the drug test, the court noted that there was only a suspicion of marijuana use while in Burgel there was an admitted history of cocaine use. The court also stated that the specific test requested was not reliable for detecting marijuana. The court held that a legitimate purpose for the testing was not shown and therefore limited disclosure further mentioning that there is a great potential for abuse in ordering discovery in divorce and custody matters. Likewise, the appellate court did not allow a test when a family court judge ordered the test based upon his personal familiarity of the petitioner’s boyfriends history that the judge had knowledge about from his job as a prosecutor at the District Attorney’s office in Eileen C. v. John C., 152 A.D.2d 645 (2nd Dept. 1989). In practicality, what happens when someone ordered to submit to a drug test does not show up or refuses to take it in a New York family law case? The court is permitted to take an adverse inference and conclude what the results of the test may be. Whether to submit to a test that will show drug use or to refuse the test and permit a negative inference might be a tactical decision for someone facing a court ordered drug test. Besides divorce and custody cases, drug testing sometimes comes up in Family Offense or order of protection cases, and Child Abuse and Neglect cases. Whether the refusal to submit to the test would constitute a contempt or if other sanctions are possible will be left for discussion on another day. Please see our other blog entries and web pages for more discussion and facts about various matrimonial, mediation, collaborative law and family law topics. As always, feel free to call about your free initial consultation. It would be our pleasure to talk to speak or meet with you.
Posted in: Child Custody and Divorce
November 2, 2014
Updated: April 22, 2015 6:29 pm
Comments are closed.
Contact Us
Free Initial Consultation - Call Today (516) 333-6555
Topics
