Why Would Courts Order a Drug Test?
In child custody cases the best interest of the child is the standard in which a court of law in Texas abides by in deciding rights and duties, visitation, and possession and access to a child. This "best interest" of the child standard can be illustrated for a court in a vast multitude of ways. For example, a party to a custody case may argue that their house is better for the child than the other parent's house because the first parent's house is roomier than the other, or a parent could argue that the school district in which one parent is zoned is much better and higher ranked than schools in the other parent's school zone. Litigants may argue that one parent smokes cigarettes indoors and the air is cleaner at one parent's house than the other, there are so many possibilities. One issue that commonly arises in this argument of persuasion in front of a court is that one parent uses drugs and it is not in the best interest of the child to live with, or be around a drug user without supervision, or at all. It could be any type of drug, including marijuana.
Drug Use Can Be Harmful to a Child Custody Case But Don't Think It's Over!
If you have tested positive for any type of drug during your child custody case then the first thing you should do is stop using. You should also enroll in a drug treatment program to get yourself clean. The goal is to become a drug free parent for your child, but it will also help show the court that you are making an effort to become a better parent and to be permanently free of illegal drugs. If you have a drug problem then I encourage you to get help immediately. Texas courts do not have a desire to limit your rights regarding your children or your visitation, it is actually the public policy of Texas to promote parent's having access to their children and sharing the rights and duties in raising a child. That being said, what you need to do if faced with a positive drug test in a child custody case is make sure that you make substantial progress in getting the drugs out of your system and make sure that you can prove to the court that you are making significant strides in eliminating any drug problem that you have. You have to convince the court that although you have had difficulty in the past with illegal drugs you are making progress with the problem and it is not in your child's best interest for your rights to be limited in any way. If you are concerned about he other parent using drugs then keep reading.
Think Twice Before Asking a Court to Order Drug Testing
If a client comes to me and tells me that custody is at issue and that one parent is using drugs or has recently used drugs than one of the the first things I will ask them, other than questions pertaining to the safety of the child, is whether they also use drugs or if they could pass a drug test. The reason I would ask that is because if you request a court to order a drug test of the other party it is very likely that the requesting party is also going to have to test as well. The court can order that this happen on their own motion, it is not necessary for an opposing party or attorney to request a drug test for the party requesting a drug test. If both parties fail a drug test then it is very likely that in addition to harming your own case, Child Protective Services could get involved in your life and you will have a whole other big issue to deal with that you had not anticipated at all. If you know that you don't use drugs and that you could pass a drug test then asking a court to order a drug test of the other party could be helpful to your case if that other party is a drug user. Be wary here as well however because if the other side tests negative then you could end up paying for the drug testing, you could end up paying either way depending on how the court decides to divide up the costs, but the chances of paying are higher if the other party tests negative.
If You Need Help With A Child Custody Case then Hire an Attorney
One of the biggest mistakes people make in child custody lawsuits is thinking that they will be able to handle it all themselves. One extreme example of how do it yourself pro se litigants hurt themselves is the following, which pertains to drug testing. There was once an experienced attorney who asked a court to order drug testing of a father accused of using marijuana by his wife, and all the parties were standing before the court at the drug testing motion hearing. The father made a feeble attempt to defend himself and was shut down by the objections of the attorney at practically every sentence, the attorney made him look foolish and his side of the story wasn't presented properly at all. He probably had some good points to make, but he didn't understand what was important and what wasn't. The father also thought that it would be wise to announce to the whole courtroom that he has always used marijuana and it wasn't a problem with the mother before so why was it a problem now? In the end the court was not impressed with his statements and he still had to take a drug test and needless to say he practically destroyed his case, he was also on the brink of facing criminal charges. If an attorney were in a similar situation representing a father like that one it would not have been near as bad, and the attorney would at least have been able to present the father's side of the story properly and in an understandable way for the court to consider. In a nutshell, custody cases have too much at stake to risk losing the case because of a blunder that could be easily avoided so hire an experienced Houston or Texas family lawyer.
Disclaimer: this post is for informational purposes only and is not legal advice and does not create an attorney client relationship.
If you need help with your specific child custody case then give the Law Office of Chad Zubi a call at 281-962-3877.
Sometimes I get a call from someone who has an issue with the amount of child support they are paying or the amount that they may have to pay in the future. In Texas there is something known as guideline child support and it is presumed by the Texas legislature to be in the child's or children's best interest. A court can vary from these guidelines in certain circumstances but those are rare. This Texas guideline child support is based on a formula which is the average net monthly resources of the parent obligated to pay multiplied by a percentage that is established by the Texas legislature for a particular number of children. One child is generally 20% and you add five percent for each child after that up to not less than 40% for six children. For example, if an obligor parent's average net monthly resources is $2000.00, then the Texas guideline child support obligation would be $500.00 per month for two children which is 25% of $2000.00. If you have more than one child then as child support ends for each child there will be a step down. For example, if you have two children, like in the above example, and one of them reaches the age of 18, then your child support can be decreased from 25% to 20%. That would mean that your obligation would be $400.00 for the remaining child who is under 18. There will almost certainly be steps that need to be taken to make this step down actually happen and you should consult an experienced Houston or Texas family lawyer who deals with child support issues to help you figure out exactly what needs to be done in your specific case. Do not assume that the step down will just happen. You should be mindful that as of September 1, 2019, child support in Texas will be calculated on the first $9200.00 per month of the paying parent's income and there are caps of child support which are:
1 child: $1840.00; 2 children: $2300.00; 3 children: $2760.00; 4 children: $3220.00; and 5 children: $3680.00. You should know these limits because some parents unwittingly end up paying more than they should. There is a child support calculator that is available through the Texas Attorney General but it is possible to get a good idea of what your payment will be by following the next steps.
First: Figure out what your annual gross income is. Gross income includes things such as wage and salary income and other compensation for services such as overtime, commissions, tips, and bonuses, all interest, dividends, and royalty income, self-employment income, net rental income, all other income received such as pensions, retirement pay, severance pay, income from a trust, capital gains, annuities, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest from notes, spousal maintenance, gifts, prizes, child support, and alimony. Gross income does not include income by a new spouse, TANF benefits, payments received as a result of providing foster care, accounts receivable, or a return of principal or capital on a note that is not included in net resources.
Second: Figure out what your average gross monthly income is. This part is easy, you take your annual gross income and divide that by 12 which provides your monthly gross income.
Third: Subtract certain things from your monthly gross income to provide you with the amount of your average net monthly resources. The items you subtract are things such as federal income taxes paid, state income taxes, union dues, monies paid for child or children's health and or dental insurance, and social security taxes. Note: the amount of net resources you have can be calculated using what is known as a Texas child support chart and you find your gross income on the chart and it provides you with your average net monthly resources. Be careful of which chart you use because there is one for self-employed people and one for employed people.
Fourth: Figure out what your monthly child support obligation will be. To do this you will apply the following percentages to your average monthly net resources: One child is 20%, two is 25%, three is 30%, four is 35%, and five is 40%, six is not less than 40%.
If your income is more than $9200.00 then the amount of child support can be more if the child has proven needs that are more than the guidelines provide. A court can order the other parent to pay the difference or a court can order both parents to pay the difference. If a child receives social security or disability benefits from the obligor spouse's old age social security or disability benefits then the amount received are subtracted from the amount of guideline child support. It is also important to recognize that if you have a legal obligation to support a child that is not included in the case you are litigating then the percentages of child support applied will be lower.
This post is general in nature and your specific case should be carefully analyzed by an experienced Houston or Texas family lawyer. If you are dealing with a child support issue, then you should choose qualified counsel to guide you through the process. A mistake at calculating child support can be very costly and long lasting. You could end up overpaying because of a very minor mistake. There have even been cases where a parent owes thousands and thousands of dollars in child support many years after the child or children in question have aged out. Back child support will potentially follow you for the rest of your life and it accrues interest which makes it all the more difficult. You should take extreme care in making sure that the amount of child support that you pay is what you should be paying so as to avoid falling into this hole because you are unable to make the payments. Call the Law Office of Chad Zubi today to discuss your options.
DISCLAIMER: This site and any information contained herein in intended for informational purposes only and should not be as legal advice. Seek competent legal counsel for advice on any legal matter.