Full question:
A restraining order/show cause along with revised parenting plan for no parental rights and supervised visits. With no witnesses or personnel knowledge the petitioner has asked the court for a hair follicle test for drugs? The judge has requested this from the respondent. The respondent has no record or even a traffic infraction. Does the 4th and 5th amendment and also privacy laws an argument to not comply with the request? Can the judge use a refusal as an admission of guilt?
- Category: Divorce
- Subcategory: Child Custody
- Date:
- State: Washington
Answer:
Unfortunately, the courts have not extended the right against self incrimination (5th Amendment of the Constitution) to non-criminal matters. A restraining order pertaining to parenting rights is not a criminal matter. Hair follicle testing is common in custody matters and is growing in usage by employers too.
Often times, refusal to take the test can cause more concern to the court than the test itself, especially if it has already been ordered to be done by the court. The court is charged with the responsibility of determining what is in the best interest of the child. As you can imagine, whether a parent could under the influence of illegal drugs is importatnt to know as such activity would pose great risks to the child.
Here are some cases that discussed the use of hair samples in a custody case in Washington:
The Marriage of Turner, King County Superior Court, Case No.97-3-00075-4 KNT, Tacoma,
Washington.
Factual Background: During a custody hearing, the mother was accused of using methamphetamine.
The attorney for the father obtained a hair sample and submitted it for testing. The sample was
positive for methamphetamine.
Result: The father was awarded custody. The mother was retested several months later and was negative. The mother was awarded visitation as long as there is no further suspicion of drug use.
The Parentage of B.L.W., Tacoma, Washington.
Factual Background: In this case the father sought a major modification of residential schedule.
Based on his allegation of mother’s use of methamphetamines.
Result: A hair test corroborated her use of methamphetamines. Custody was awarded to the father.
The Marriage of Hicks, Pierce County Superior Court, case No. 97-3-01970-1, Tacoma,
Washington.
Factual Background: The mother was accused of drug use. A hair test was submitted and was
reported negative for all drugs.
Result: The mother was awarded custody and the father was awarded liberal visitation.
If you believe the court did not have all the pertinent facts before ordered the test to be performed, it may be beneficial to discuss your case with a local attorney experienced in child custody cases.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
