Drug Testing Options…Pros, cons of recourses during divorce proceedings
Published in Chicago Lawyer Magazine, December 2024
By Daniel Stefani
In Illinois, courts have the authority to order drug testing for parents involved in divorce proceedings when there are issues with child custody and/or parental responsibilities.
The type of test the court orders depends on the allegations and the type and frequency of suspected drug use. Typically, urine tests are the most common, but a judge may also order hair, nail, saliva or blood tests as well. Judges would typically order a litigant to submit to a certain type of test within hours of entering the order and on a regular or frequent basis. In some cases random testing is ordered. There are pros and cons of each kind of testing, which this article will explore.
Urine tests can detect a range of substances, including marijuana, cocaine, opioids, benzodiazepines and amphetamines. Generally, urine tests can detect drug usage within a few days to a week, depending on the substance and frequency of use. There have been instances where marijuana may show up for as much as a month. Urine tests are reliable for short-term detection but may not accurately capture any long-term patterns of use. They are relatively easy to administer and cost-effective.
In terms of avoidance of a positive result, there is some risk of the person being tested drinking a lot of water before a test, adding adulterants to a specimen and/or using someone else’s urine to get a negative result. In such a case, court and litigants should make sure the testing authority checks for dilution of urine and for adulterants and monitors the temperature of the specimen, which indicates it may not be a recent sample.
There are ways of trying to beat any kind of test. As such, courts should consider doing multiple types of testing and not just on one method. With hair follicle testing, the test analyzes a small sample of body hair, which can provide a history of drug use over an extended time period. The test looks for drug metabolites imbedded in the hair shaft. Experts differ on the actual length, but the prevailing opinion is hair tests can detect substances for up to 90 days, making them more effective for identifying long-term drug use. Some experts claim that a body hair test can detect drugs up to 12 months, but again experts vary in their opinions. Tests are less likely to be influenced by recent abstinence of drug use and are difficult to tamper with. However, they may not detect recent drug use within the past week or so and can yield false positives due to environmental exposure and not actual drug use.
Litigants try to beat hair follicle tests by shaving their head and body hair, but that is an obvious sign a party is trying to interfere with testing efforts. There are also products such as shampoos and bleaching agents that in some instances could produce a negative result.
Saliva tests involve collecting a sample, usually through a swab of the mouth. They can detect a variety of substances. These tests typically detect drug use within the last few hours to a couple of days. The benefits of saliva tests are that they are noninvasive and provide a fast result.
Blood tests measure the concentration of drugs in the bloodstream. This method is usually conducted in a medical setting. Blood tests can detect substances currently in the system and typically within hours to a couple of days. They provide a precise measure of drug levels at the time of testing. However, blood tests are more invasive and costly compared with other methods and do not determine long-term use patterns.
Fingernail and/or toenail tests can detect a myriad of substances and work in a similar fashion to hair follicle testing. Because of the slow growth of an average of 0.1 mm per day, longer nail samples have a detection window of up to six months and some experts say toenails go even further back. Nail testing is less invasive and it is difficult to tamper with if conducted in a medical or controlled setting so chain of custody issues do not become a problem. In terms of avoidance, clipping nails down is an obvious sign that a party is trying to interfere with drug testing efforts.
As it relates to all types of tests, once the test specimen is tendered, there is always a question of chain of custody thereafter. Litigants (and the court) should ensure that any drug test provider has adequate safeguards in place to accurately and efficiently provide results and, ideally, a long track record of reliability in all regards.
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high-net-worth clients, as well as spouses of high-net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.