Creating Drug & Alcohol Testing Agreements
In Divorce & Child Custody Situations
When drug or alcohol abuse is alleged in a divorce situation involving children, demands for testing are usually made as part of any divorce and custody agreement. Crafting a solid agreement regarding drug and alcohol testing for divorcing parents is critical to the safety and well being of the child(ren) and provides peace of mind and a level playing field for the parents.
In order to be effective, the agreement should cover the following seven criteria:
- Frequency of testing
- Notification for testing
- Specimen type to be tested
- Drugs to be tested
- Reporting results
- Consequences of a positive result
- Payment responsibilities
Frequency of testing:
Your agreement should include guidance as to how often testing will be conducted. Frequency of testing can be established in a variety of ways including:
- Scheduled Testing (weekly, bi-weekly, monthly)
- Random Testing (random notification by third party)
- On Demand
Notification for testing:
The agreement should clearly state how the party to be tested will be notified. It should also state how long they have to present for the testing requested – typically same day. To avoid parties claiming that they were not notified properly, using a third party such as Carolina Testing or an attorney to make notification is highly recommended. Carolina Testing notifies parties by phone, email and text message alerting them to the testing request and requirements.
Specimen type to be tested:
What specimen types can be tested? This should be included in the agreement and should include all available specimen types: urine, hair follicle, saliva, breath (alcohol), blood
Urine and saliva tests can detect recent usage. Urine testing should specify whether the collection is to be observed or unobserved. Hair follicle tests can detect use up to 90 days for drugs and alcohol. Breath alcohol testing can detect current impairment while blood PETH tests can detect 3 weeks of use.
Drugs to be tested:
This section of the agreement should not limit the drugs that can be tested as a user may opt for drugs that are not being tested in order to attempt to avoid testing positive. Drug testing panels today can include a wide variety of drugs and substances of abuse depending on your needs. A simple 5 panel drug test to a comprehensive drug detection test can be ordered as long as there are no limitations listed in the agreement.
Typically, both parties should receive the results at the same time. Attorneys of record may also be selected to receive results as well as the court if required. The agreement should require that authorization to release results to all parties must be provided by the person required to test. Failure to provide such authorization would be equivalent to a positive drug test.
This section should also address whether the lab test results will be reviewed by a Medical Review Officer or if the results will be required direct from the laboratory. A medical review of laboratory results may negate a positive laboratory result if the donor has a prescription for the drug in question. It is our recommendation that this type of testing be completed without medical review and that the results be reported direct from the laboratory.
Consequences of a positive result:
This section should clearly articulate what happens in the event that a person tests positive. Visitation may be suspended for 30 days, may require supervision, be revoked or any other consequences that the parties may agree to. Additional consequences may require mandatory counseling, therapy, treatment, etc.
The agreement should clearly state the payment arrangements for testing. Common scenarios for payment include:
- The person taking the test pays
- The person requesting the test pays
- Test costs shared equally
- The person requesting the test pays, but will be reimbursed if the result is positive.
Carolina Testing is frequently contacted by lawyers and divorcing parents to advise on how best to establish a drug and/or alcohol testing program for all parties involved. This article is to assist attorneys and parents in understanding the key elements that need to be built into drug and alcohol testing agreements in divorce and custody related cases to provide fair and equitable testing for all involved. If we can be of further assistance in this matter, please CONTACT US anytime.