Q&A: Hair Drug Test – Is Hair Follicle Drug & Alcohol Testing Legal in American Divorce & Custody Cases?

Hair Drug Test: Can the Judge Order Hair Follicle Drug & Alcohol Testing in Custody cases?
Hair drug test in a custody case: Can the Judge Order it?

Yes, hair Drug test & Alcohol testing is legal and I believe the judge can order parties to get tested for abuse of any illicit substances. And don’t make the mistake of thinking you can look at a person and know if they are abusing drugs. People of all different demographics can have problems with drug abuse and this can endanger their children.

Why would a judge order a hair drug test & alcohol test?

Because a lot of people these days have serious, recurring drug problems. Courts have deemed it is not in the best interest of a child to be let alone with a parent with a drug problem – and I am sure you can understand the logic of that. If you are impaired while the children are in your custody, clearly you cannot properly supervise them. This is especially true with young children. So having a parent under the influence while the child is in their custody is simply out of the question.

Hair & alcohol drug test
Hair Drug Test
But why doesn’t the judge order a traditional blood or urine test?
This is a good question. Apparently, the hair follicle drug & alcohol test is more accurate because drugs remain in the hair follicle for much longer than it stays in the blood or urine. Some estimates are that up to 90 days post use for head hair (a little longer for body hair – up to a year in some cases), drug remnants remain in your hair! Whereas for most drugs and alcohol, there will be no trace 3-7 days after use, according to estimates

Another reason courts seem to prefer the hair follicle drug & alcohol test is that there are fewer false positives. It is a more accurate test in other words. Of course, many people have claimed that their positive tests were wrong given that they had never used drugs.

How is the testing done?

It is basically a few snippets of hair that are taken from your newest hair growth and put under chemical testing to determine the level of drug and alcohol remnants in it, as explained on this website:

In 1993, it was discovered that remnants of alcohol could be found in hair follicles, particularly after sustained alcohol abuse. You only have 80 hours to collect urine samples, but signs of abuse last much longer in hair, allowing you to trace usage some 3-6 months after the event.
Ethyl Glucuronide (EtG) builds up on hair via sweat, which can be removed and tested to verify suspected alcohol ingestion. Only a small amount of sample material is required for testing, but results can be affected by cosmetic products that contain alcohol and ethanol, such as gels, sprays, dyes etc.
Even excessive hair washing can skew results, so the testing of EtG in hair should only be used to complement other tests, rather than as a standalone practice.

hair drug test
hair follicle drug & alcohol test
What if you don’t have a lot of hair? Can the court still order the test?

Yes. If you are bald, the courts can take the hair from your armpits or other places – including your you-know-where. But if you shave everything off, they will just order a urinalysis or blood test. But also, the court could take a negative inference depending on the situation of how you came to be totally hairless.

What types of drugs can the judge order the lab to test for?

There are apparently five classes of drugs that are mandated by the federal government:

Cocaine (Cocaine & Benzoylecgonine), Marijuana, Opiates (Codeine, Morphine & 6-Monacteyl Morphine), Methamphetamine (Methamphetamine/Amphetamine & Ecstasy), and Phencyclidine (PCP). These five drug classes are mandated for testing by the Federal Government.

Hair & Alcohol Drug Test
Hair & Alcohol Drug Test

What Rights Do You Have? Do You Have to Comply With a Court Order to Get Hair Follicle Drug & Alcohol Testing?

In theory, you are not legally bound to comply with a hair follicle test without a hearing. So you can refuse the test and then the courts would have to have a hearing to determine if there is probable cause to suspect you have been taking drugs. There will have to be a testimony of eyewitnesses, photographs, videos, etc to show that you have a history of taking drugs. The court cannot usually order/compel a person with no history of drug use to submit to a hair follicle and drug test in order to enjoy custody rights to their kids. There has to be an underlying justification.

hair follicle and alcohol drug test
hair follicle drug test

So you can refuse the test and you can get a hearing. The thing is, though, that if you are not using drugs, why not just take the test and get it behind you? Refusing to take the test could lead the judge to take a negative inference about your drug & alcohol use and abuse.
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