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Child Custody Disputes and Drug Testing


When the custody of your children is a main point of disagreement, either party may file a motion seeking to have the other party tested for drugs. 

Why a Texas Divorce Court May Grant a Drug Test Motion

There are multiple reasons why drug testing may be ordered during a divorce, but the biggest reason is to ensure that the children receive the best care and supervision possible. Obviously, if your spouse is an active drug user, this would be highly relevant when the court is analyzing visitation rights and whether to award sole custody to one parent over the other.

Drug use is relevant because, under Texas law, a court is required to consider numerous factors and make a decision in “the best interests of the child.” Tex.Fam.Code § 153.002 generally governs the factors that make up the best interests of a child. According to the seminal Texas Supreme Court case, Holley v. Adams, the factors include (but are not limited to) the following:

  • Emotional and physical needs of your child presently and in the future
  • Parenting abilities of you and your spouse
  • Stability of the home that the child would be residing in
  • Actions or omissions of you or your spouse that may indicate the existing parent-child relationship is not conducive to visitation or full custody

If your spouse is actively using illegal drugs, this will be a major factor in influencing the court’s decision on visitation and custody, especially if you have a young child or a child with special needs. 

Filing a Motion to Request a Drug Test

It is important to understand that filing a motion for a drug test requires a good-faith showing that your spouse is indeed engaged in the active use of illegal drugs or narcotics. This is not a motion that should be filed in a whim. Why? Because there is no presumption in favor of ordering a drug test. Basically, this means that a court is not obligated to grant the motion and could simply deny the motion altogether. Once the motion is filed, your spouse’s lawyer will likely file a response disputing the allegations raised in the motion. Once the response is filed, the court will schedule a hearing and decide whether to grant or deny the drug test request. During a hearing, the court will likely ask you to present evidence supporting your claim that your spouse is abusing drugs or alcohol. 

Responding to Motion Seeking a Drug Test

If your spouse filed a motion seeking that you be drug tested, it is critical that you respond immediately stating the reasons why there is no compelling reason to go forward with a drug test. 

If the Motion is Granted

If the judge grants the drug test motion, you should comply with the order and submit to the drug test. Failing to show up or refusing the test only exacerbates the allegations and will not improve your position with the court.  In fact, failing to comply with a court order could result in you being held in contempt of court. 

Speak to a Houston Family Lawyer Today

Working with a Houston family law lawyer at Lindamood & Robinson, P.C. will put you at ease and help you get through this difficult process so you can begin your new life. Contact our office to schedule a consultation and discuss your legal options.




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