Court addresses drug testing statute in family law case

The recent case Heidi S. v. David H., 2016 DJDAR 7729 (July 28, 2016), is useful for family law practitioners on two bases: First, the decision of the 2nd District Court of Appeal reminds us of the heighten burden for modifying a custody order made by the dependency court. Second, the decision is one of the few interpreting the drug testing statute applicable in family law.

Heightened Burden to Modify Dependency Court Orders

The juvenile court ordered sole legal and physical custody of a 17-month-old baby to Father after Mother was found in a public park under the influence of alcohol and controlled substances and holding the child in her arms. Less than three months later, on the basis of allegedly changed circumstances since the issuance of the exit order from the dependency court, Mother filed a request to modify in the family court. She requested joint legal custody, sole physical custody, and unmonitored visitation. After a lengthy hearing, the trial court issued orders keeping Father in place as sole legal and physical custodian. However, the court modified the visitation schedule by creating a three-tiered system in order to gradually phase out Mother's monitored visitation and to phase in unmonitored visitation.

The decision reminds us that in order to modify a juvenile court's exit order, the family court must first make a finding that there has been a significant change of circumstances, and that modification of the order is in the best interests of the child.

Whereas in family court a visitation order (as opposed to a custody order) may be modified without first finding a substantial change in circumstances, Welfare and Institutions Code Section 302(d) imposes a greater burden when a family court modifies a juvenile court's exit order. Because of its concern with Mother's potential for relapse and continued use of illegal substances, the trial court exercised reasonable judgment in striking an appropriate balance in acknowledging that changed circumstances warranted modification of the visitation schedule, and in determining that those changes did not justify the full remedy requested by Mother.

Family Code Section 3041.5

The 2nd District rejected Mother's second argument that the family court violated Family Code Section 3041.5 - which governs the court's ability to require a person seeking custody to undergo drug or alcohol testing - by requiring her to submit to drug testing indefinitely as a condition to further visitation, and by ordering that a positive drug test would immediately trigger a return to the reduced visitation schedule imposed by the dependency court exit order.

Considering Mother's arguments to present issues of first impression, the court first rejected Father's argument that the trial court was not under any requirement to comply with Section 3041.5 and needed only to comply with the statutory requirements imposed upon the juvenile court, not the family court. The court found that Section 3041.5 applies to "any custody or visitation proceeding brought under this part, as described in section 3021." Once the juvenile court's jurisdiction has ended, although the family court had to enforce the exit order, the family court was bound to rely on its own statutory authority to issue new orders, including those modifying the exit orders.

For her part, Mother argued that the family court failed to make the required judicial determination that she exhibited the habitual, frequent or continual illegal use of controlled substances, or continued abuse of alcohol, as required by Section 3041.5. She further contended that in order to determine whether the requirements of Section 3041.5 were met, the family court could consider only evidence arising after a party's request to modify an exit order. The appellate court strongly disagreed stating, "the Court will not put blinders on and ignore the party's history."

As to mother's argument that Section 3041.5 does not authorize the court to order indefinite drug tests, the court held that nothing in the plain language of the statute limits the family court to ordering drug testing for a fixed period of time. If the Legislature had wanted to impose temporal limitations on the authority granted to the family court by this statute, it would have said so.

Lastly, Mother contended that the family court's condition that a positive drug test result would immediately trigger a return to reduced visitation violated Section 3041.5. That section provides that "the parent ... who has undergone drug testing shall have the right to a hearing, if requested, to challenge a positive drug result. A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision." The court held the statute precludes adverse action on a "custody or guardianship decision," but not on a visitation schedule. A change in custody is not equivalent to change in visitation, due to the weighty interest in protecting stable custody arrangements for a child.