March 27, 2008

Ask The Lawyer

Seeing your own children may carry restrictions

This week's question:
My husband has a serious drinking and drug problem. We are thinking about parting ways but I am concerned about the children. They are 14, 12 and 9. He says since he is their father he will be able to see them any time he wants with absolutely no restrictions. Is he right?

Amanda A.
Almaden Valley


Dear Amanda,
If your husband has a serious drinking and drug problem as you say he does, the court could well impose some restrictions when he has the children.

Possible restrictions might include supervised or semi-supervised visitation, when a responsible adult would also be in attendance during the visit. Other restrictions might include very short visits, infrequent visits and not overnight. Random drug and alcohol testing might also be done. There are ways to deal with this problem.

The state of California has adopted California Family Code ß3041.5 entitled “When Court May Order Testing for Alcohol or Illegal Use of Controlled Substances in Custody, Visitation, or Guardianship Proceedings”.

This is a rather long Family Code provision dealing with the serious problem of drug and alcohol abuse in our culture today. It may apply to any custody, visitation or guardianship proceeding brought in California.

The court may order any person who is seeking custody or visitation with a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship or person seeking visitation in a guardianship.

A conviction during the past five years for the illegal use or possession of a controlled substance would presumably be considered by the court.

Also, the court has the authority under the provision to order random testing. This testing must be the “least intrusive” method of testing for the illegal use of controlled substances or the habitual or continual abuse of alcohol by either or both parents, the legal custodian, person seeking guardianship or the person seeking visitation in a guardianship proceeding.

If drug or alcohol testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.

If the testing is done and if the test is a positive test, the tested person has a right to a hearing in court to challenge the positive test result.

A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors.

The results of the testing shall be confidential, shall be maintained as a sealed record in the court file, and may not be released to any person except the court, the parties, their attorneys, the Judicial Council (until completion of its authorized study of the testing process) and any person to whom the court expressly grants access by written order made with prior notice to all parties.

If there is any breach of the confidentiality of the test results, the person or entity is subject to punishment by civil sanctions of up to $2,500.00.

The results of the testing may not be used for any purpose, including any criminal, civil or administrative proceeding, except to assist the court in determining, for purposes of the proceeding, the best interest of the child or children and the content of the order or judgment determining custody or visitation.

The court may order either party, or both parties, to pay the costs of the drug or alcohol testing ordered by the court.

It is to be noted that this provision in the law shall remain in effect only until Jan. 1, 2009, but I personally would not be surprised if a new similar provision would be passed into law before that date.

Want to read the provision for yourself? It’s quite easy by going to your favorite search engine and in the search box enter “California Family Code Section 3041.5.” After you enter “go,” the full provision should be on your screen in about a tenth of a second. It worked for me quite well with Google.

As always, you will want to consider the application of this particular law with your own attorney for a complete understanding of how the rules may apply or not apply in your particular situation. There are usually many factors involved in custody and visitation cases.

At least, Amanda, I think it’s safe to say that there may be some restrictions on your husband’s visitations with the children in the event of a separation, assuming that he has the serious drinking and drug problems as you described.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.