Will I Lose Custody If I Fail a Drug Test? Important Facts

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By Divorce & Finance

Will i lose custody if i fail a drug test all you need to knowThe question “Will I lose custody if I fail a drug test?” is in the minds of most parents when CPS begins an investigation due to an arrest for drug possession, drug-related crime, or substance abuse.

Drug tests are common when parental alienation occurs and a child custody case is filed, as well as in CPS cases. Parents don’t always lose custody due to a failed drug test as courts consider various factors as well.

The main reason for removing a child or terminating parental rights is when a court ascertains that the child isn’t safe with the parent, so this article will evaluate custody cases and possible outcomes for parents who use drugs.

Will You Lose Custody if You Fail a Drug Test in a CPS Investigation?

Not necessarily; the decision whether you will lose custody if you fail a drug test in a CPS investigation depends on the findings of the court, and it is essential to note that child custody decisions solely lie with the family court.

CPS can’t remove your child and terminate parental rights as this decision will depend on a family court judge. As such, parents should know their rights when an investigator requests a drug test.

– Can CPS Ask Me to Take a Drug Test?

Yes; legally, CPS can ask you to take a drug test. Similarly, parents have a right to refuse the test but must understand the law and the circumstances under which they may refuse. Courts have found CPS assessments to be “compelled invasions into family privacy in line with state law.”

In many of the CPS cases, you can expect the following scenario:

  1. CPS gets notified of child neglect, parent’s drug abuse, or domestic violence.
  2. CPS visits the parent’s home to discuss the situation.
  3. The parent is ready to discuss the matter, and CPS tells them they must take a drug test.
  4. The parent thinks about declining but fears their child will be removed if CPS presumes that they are a drug addict.

In many cases, a drug test by CPS isn’t used to refer a parent to a rehab facility or drug counseling. Instead, it is used punitively to remove a parent’s child from their home. However, parents can almost always expect that a CPS investigator will ask them to take a drug test.

It is also worth it to note that the court can issue you a drug test without warning. If your CPS case was based on drug use, a judge might approve random or scheduled drug tests depending on your case plan. The court can do so to evaluate your progress and readiness to care for your child and provide a safe home.

– Failing a Drug Test

There are things that CPS can and can’t do if you fail your drug test. CPS can’t technically remove your child if your child is safe, even after failing a drug test. However, this doesn’t mean that a failed drug test won’t impact you or your child.

If CPS needs a court order to remove your child, they will present their case before a family court judge and mention the failed drug test. However, they have to explain their decision for wanting to remove the child, as a failed drug test alone isn’t enough for removal. CPS can substantiate drug abuse and prove other things, such as child abuse or neglect, that go with it. A failed drug test could easily have your child removed from your home if this is the case.

That is especially the case if the caseworker determines that the child is at risk of possible harm due to the parent’s drug use or the parent is unable to manage and control their behavior, making them a threat to the child. A positive drug test could result in CPS giving you the option to sign a safety plan to remove your child and place them with a close relative or family friend. However, the caseworker must first establish a connection between drug use and possible harm to the child.

If your drug test returns positive, CPS could refer you to help facilities such as substance abuse treatment centers or an outreach, screening, assessment, and referral center.

– Losing Custody if You Fail a Court Ordered Drug Test

A test that returns positive results for drugs may be detrimental to your custodial and visitation rights. Judges are usually wary of returning children to homes where parents use drugs for various reasons, including:

  • An unhealthy home environment due to illegal behavior that comes with drug use
  • Exposing a child to drug use
  • Increased risk of neglect when the parent is on drugs

If a parent fails their drug test, a judge may terminate parental rights and grant custody to a family member or close friend who shows interest in the child’s custody case.

Some parents may ask, “Will I lose custody if I fail an alcohol test?” A failed alcohol test will not mean an automatic loss of custody. Like other substances, the court will evaluate factors before giving a custody order, including the severity of alcohol addiction, the safety of the home environment, whether the parent has sought help, and the child’s best interests.

For instance, a failed drug test child custody Georgia often sees a parent put under a treatment plan for recovery and the child’s transition back to the family home. Therefore, a failed drug test in a CPS investigation doesn’t necessarily take away your custodial rights. However, this might change if you don’t adhere to your treatment plan.

– Refusing a CPS Drug Test

Remember, parents aren’t legally obliged to agree to drug tests ordered by CPS. If you do not agree to take the drug test, the caseworker will document your refusal if they have reasonable suspicion of possible drug use.

The CPS caseworker may then file a lawsuit to obtain a warrant that compels you to court ordered drug testing. However, the caseworker must prove probable cause to get the warrant. Usually, CPS won’t forcibly ask you to take a drug test unless you agree to it or the agency gets a warrant for the drug test.

Refusal to take a drug test requested by CPS may lead to the removal of a child from your house if the caseworker believes that your child is at risk of immediate harm. If CPS removes your child and you still refuse to take the drug test, returning your child could be difficult.

State laws governing CPS operations may vary between states. As such, parents are advised to speak to an experienced family law attorney when they find out about an ongoing CPS investigation to protect their rights.

– Refusing a Court-ordered Drug Test

When CPS obtains a court order to get you to do a drug test, the court expects that you obey the order and submit to a drug test. Refusal to do a court ordered drug test could result in contempt charges, and you could still have your child removed from your home.

– CPS Case Plans and Drug Tests

You have every reason to be worried when CPS knocks on your door after receiving a call about potential risk to your child due to behavior fueled by drug use. In many cases, parents will agree to a drug test requested by CPS, fearing that refusal would lead to child removal from their home.

Most parents don’t know that even “false positive” drug test results could result in the removal of their child. If this happens, CPS places the child with a relative, and the parent must go through a case plan before they can have their child back.

If the parent has a history of drug use, CPS will put them through a case plan involving rehabilitation before they can return the child to their home. If the foster family, say the grandparents, feel that the child is still at risk due to the parent’s drug use, they can petition the court to grant them permanent child custody.

– Drug Tests in Child Custody Evaluations

Family members or close friends may file a custody case if the parent’s ability to care for their child is hampered by drug use. In such cases, a judge decides based on the child’s best interest. Since drugs can negatively affect a parent’s ability to nurture and provide a safe home for their child, drug testing may apply.

What Types of Drug Tests May Be Ordered by CPS?

The types of drug tests that may be ordered by CPS include urine tests, saliva or oral fluid tests, or hair strand/hair follicle tests. Parents suspected of drug use may be required to undergo any of these types of drug testing during child custody cases.

– Urine Test

This is the most common drug test type in custody cases. It can be used as an alcohol test and detect marijuana, opiates, amphetamines, cocaine, and PCP. While common, this type of drug test isn’t suitable for detecting drug use over a longer period of time.

– Saliva/Oral Fluid Test

This can be an instant swab test or an instant test with lab confirmation. It’s a drug screening test that traces the presence of alcohol and substances such as marijuana, cocaine, amphetamines, and opioids.

These tests are fairly accurate and leave little room for tampering with the results. However, they have a smaller detection window compared to others.

– Hair Strand/Hair Follicle Test

Hair follicle testing in a custody case helps detect drug use over longer periods of time than saliva and urine. However, it is a more expensive test than others, and various environmental factors may affect the test results.

– Court-Ordered Drug Testing Procedure

The party seeking custody (family members or close friends) has the right to request that a parent undergo a drug or alcohol test to prove that they can adequately care for their children. A motion is filed requesting the court to order a drug or alcohol test and for the results to be used when making custody decisions.

The judge may order sample collections under supervision, but it’s not always the case. After the sample has been collected, it’s sent to a SAMHSA-certified lab for testing. The results are evaluated by a medical review officer who notifies you and the court of a positive or negative result.Will i lose custody if i fail a drug test what to expect


When a CPS caseworker knocks on your door and requests a drug test, there might be concern on your mind, but in most states, child protective services agencies provide treatment plans for parents with drug issues. In this article, we’ve addressed the main issues surrounding drug tests and child custody, and here are the main things to keep in mind:

  • CPS will likely request a drug test if they receive a report of possible child neglect due to the parent’s drug use.
  • A parent isn’t legally obliged to accept a drug test request by CPS, but refusal might affect the course of the CPS investigation or child custody case and could result in the child’s removal from their home.
  • A parent won’t automatically lose custody due to a failed drug test, but failure to adhere to a treatment plan may see them lose parental and visitation rights.
  • If a parent is placed under a CPS treatment plan for drug use, they should expect a random drug test as the agency evaluates their progress.

CPS and child custody cases can get tricky, especially for parents suspected of drug use, so to protect their parental rights, they should stick to the case plan and work closely with all involved parties, including their attorney, foster family, caseworker, and even the Office of Guardian ad Litem. Most importantly, parents should work with a reputable law firm or experienced family law attorney when courts or CPS order drug tests.

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