QLD Can I Ask Ex to Take a Drug Test?

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KaraEmme

Active Member
2 March 2018
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My ex has been a regular drug user for years. We’re talking since he was in his early teens. I’m very concerned that when he starts having our baby by himself that he will be taking drugs around him which will make him unable to take care of bub. He has never gone a day with out drugs.

Aparently he has quit (I’m reluctant to believe it). Is there any way that I can request him to do random drug tests so I can make sure bub is safe in his care?

What’s the process I need to take?

Who pays for it the drug test?

If he comes back positive, can I keep bub and not hand him over?

Can he refuse to do it?

If he refuses, can I withhold bub from going with him?
 

AllForHer

Well-Known Member
23 July 2014
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So, first, what drugs are we talking about here?
 

AllForHer

Well-Known Member
23 July 2014
3,664
684
2,894
Right.

So, first, the legal side of the thing.

Unless you have parenting orders in place, you - and dad - are at liberty to do as you see fit for your child.

You can request drug tests, he can refuse them, you can withhold the child, dad can file an initiating application with the Court for parenting orders.

Once the Court gets involved, that invokes the Family Law Act 1975, which does not contain any provisions about parental rights. In family law, children, and only children, have rights, which are to know, spend time, and communicate with both parents on a regular basis, regardless of the nature of the relationship between said parent. The Court's job is to uphold those rights, insofar as the child's best interests can be met.

'Child's best interests' is not a subjective term. The list of factors which the Court must take into consideration in regard to the child's best interests are contained within s 60CC of the Family Law Act. The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm caused by neglect, abuse or family violence (and there are about 12 secondary considerations).

So, if you wanted the Court to make an order reflective of your decision to withhold the child, you'd have to persuade the Court that it's not in the child's best interests to have a meaningful relationship with his father because the father's drug use means he poses an unacceptable risk of harm to the child through abuse, neglect or family violence.

Likelihood of that happening when all he does is smoke weed? Pretty near on zero. In fact, the Court might impose a restraint by injunction on both parents from consuming illicit substances or consuming alcohol to excess just before and during the child's time with the parents respectively, but outside of that, it's not going to have much influence.

On the other side of the coin, if dad decides to file for parenting orders, your decision to withhold the child can raise an argument in dad's favour: that you don't recognise the benefit to the child of having a relationship with both parents. It's a very common argument that can, and often has, resulted in a reversal of residency.

Think about it logically. If the Court removed every child in this country from their parents just because their parent smoked weed, I imagine we'd be sporting one of the world's most overloaded foster care system, and on top of that, pscyhology studies would suggest that most kids are better off having a relationship with their weed-smoking dad than not at all. As an observation, you also knew dad was a pothead when you decided to have a baby with him, correct?

What I suggest is contacting Legal Aid for legal advice and to get the ball rolling for mediation so you and dad can talk about care arrangements for the child and hopefully reach an agreement.

For the drug use issue, perhaps you could propose something like the following:

- That neither parent shall consume illicit substances or consume alcohol to excess for 24 hours prior to the child coming into their care, nor during the child's time in their care;

- That both parents agree to submit themselves to saliva testing for drug use as requested at random by the other parent, conditional on such a request being made no more than three times in a 12-month period;

- That in the event of a parent returning a positive test result, the child's time with that parent shall be supervised by the maternal or paternal grandparents until such time that at least two consecutive negative test results have been returned.

But I wouldn't suggest is withholding the child over something as common and low risk as marijuana. Is withholding the child because dad enjoys a daily joint really worth risking custody over? Probably not.