Can the court order a parent to submit to a drug test at the request of the other parent in a contested child-related issue?
Substance abuse issues, or allegations of substance abuse, are often at the forefront of family court cases, and can play significant roles in determining the custody and placement arrangements that are in the best interests of the children.
Wis. Stat. section 804.10 arguably grants the court the authority to make such an order:
When the mental or physical condition … of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown.
Cause: Some versus Compelling
Drug or alcohol testing is a form of physical examination. The mere requirement of “in issue” seems to open the door to a wide range of justification, or cause shown, for a request. Whether a party has presented a sufficient basis to request the examination is within the circuit court’s discretion.1
Wis. Stat. section 804.10 only requires that some cause is shown – it does not specify that the cause must be compelling.
When read broadly, the somewhat vague wording of the statute lends itself to the argument that the court has wide latitude when deciding whether to grant a request that another party undergo drug or alcohol testing.
In addition to the support in favor of testing gleaned from section 804.10, further support can be found in Wis. Stat. section 767.41(1)(b), which provides that:
the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section (emphasis added).
This statute, too, grants the court the ability to make a discretionary decision as to what it “deems just and reasonable” to achieve its ends – which is ultimately determining how best to serve the best interests of the children involved.
The court could decide that granting a request for drug or alcohol testing would help it determine if custody and placement with that parent is in the child’s best interest, or if there needs to be ongoing testing to ensure the child’s well-being while in that parent’s care.
Wis. Stat. section 767.41(5)(am)7 specifically requires the court to consider whether a party, a person with whom a party has a dating relationship, or a person residing in a party’s household, “has or had a significant problem with drug abuse.”
The court could find that drug or alcohol testing is necessary in its consideration of that factor, which further supports the argument that section 767.41 provides the court the authority to order testing at its discretion. Drug testing has previously been ordered as a condition of placement.2 However, in that case, whether the testing could be ordered was not the subject of the appeal.
Enforcement Authority
While the above statutes do enable the court to issue an order for drug testing, there is certainly room for argument as to how freely such orders should be made. After all, “cause shown” is an indefinite, nonspecific standard, and risks allowing parents to continually force each other to undergo drug or alcohol testing, even if the “cause shown” is minimal.
Although section 804.10 gives the court the authority to make the order, Wis. Stat. section 804.12(a)(4) creates difficulties in enforcing an order for drug testing. That subsection, which addresses failure to comply with an order made under the discovery chapter, states that failure to “submit to a physical, mental or vocational examination” cannot result in contempt, unlike failures to comply with other portions of the discovery statute.
Although family court case law is largely silent on the specific question of drug and alcohol testing, civil cases have previously addressed similar issues, particularly in the context of the authority and limitations of section 804.10.
In Syring v. Tucker, plaintiff Syring sought an order compelling Tucker to undergo a blood test after Tucker bit him and claimed that she had AIDS.3 The circuit court initially found that it did not have the power to compel Tucker to submit to a blood test under section 804.12(a)(4) because contempt was unavailable as a remedy when Tucker refused to comply.
The question eventually made its way to the Wisconsin Supreme Court, which ultimately agreed with the circuit court’s reasoning and determination that it could not enforce an order for physical examination under the discovery statute.
However, the Supreme Court also found that the circuit court still had the “the power to apply equitable remedies as necessary to meet the needs of the case.” In the Syring case, that meant requiring Tucker to submit to a blood test. The Supreme Court stressed that, as with any search, the need must be compelling enough that it outweighs “any intrusion into legitimate expectations of privacy.”
Conclusion: The Reason Should Be Compelling
Based on the statutes and available case law, there appear to be three avenues for a circuit court to order drug or alcohol testing:
- through discovery;
- just and reasonable provisions for custody and placement; and
- equitable authority of the court.
However, it can also be argued that testing should be limited to instances in which there is a compelling reason, which would weed out parents making requests for unfounded reasons.
Regardless of what the statutes do – or rather, do not – say, whether to order testing is a discretionary decision. Although, there are plenty of arguments to be made in either favor of or in opposition to drug and alcohol testing of a parent during a custody and placement determination.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
Endnotes
1Zirngibl v. Zirngibl, 165 Wis. 2d 130, 141, 477 N.W.2d 637, 641 (Ct. App. 1991).
2In re Paternity of J.R.G., 2014 WI App 16, ¶ 7, 352 Wis. 2d 573, 842 N.W.2d 536.
3Syring v. Tucker, 174 Wis. 2d 787, 797, 498 N.W.2d 370, 372 (1993).
