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DrakeLAW, Lawyer
Category: Family Law
Satisfied Customers: 790
Experience:  Attorney at Drake Law Firm PLC
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I am trying to find some sort of case law or law showing

Customer Question

I am trying to find some sort of case law or law showing that the amount of drug testing, thru hair follicle, that the judge in my case is an abuse of discretion. I have ordered to complete 10 hair follicle tests over the period of 10 months, plus 2 random urine tests a month for 10 months. I have no drug charges, never been to prison, not found to be an unfit mother, still have joint legal custody, and I know this is not legal. Plus the court ordered drug testing came shortly after I filed a motion for a new judge, which was denied, and I still sat in front of the same judge. I live in Arizona.
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: Arizona
JA: Have you talked to a lawyer yet?
Customer: I had one which I ended up firing and then another that told me the best bet in my particular case was to file a complaint with the Arizona Bar Association
JA: Anything else you want the lawyer to know before I connect you?
Customer: I haven't seen my children in over a year and I have had no parenting time, supervised, for almost 2 years
Submitted: 11 months ago.
Category: Family Law
Expert:  DrakeLAW replied 11 months ago.

Hi, my name is ***** ***** I look forward to helping you, please give me a moment to review and possibly research answers to your question.

Expert:  DrakeLAW replied 11 months ago.

You will not find any such case law saying that is an abuse of discretion because it is not. Are you saying you have not even had supervised parenting time for almost 2 years?? That part isn't right.

Customer: replied 11 months ago.
Hi Rich, my name is ***** ***** I am really hoping I can get some help for my situation
Expert:  DrakeLAW replied 11 months ago.

Sure, lets see what I can do to help. Please answer about the supervised parenting time to start.

Customer: replied 11 months ago.
I originally filed a petition for modification in April of 2013 when I found out my ex husband was taking my children into his mothers vacant home and teaching them how to grow marijuana, ages 6 & 7. We at that point had 50/50 custody for almost 5 years. In May of 2014 we went to court and the Judge at that time restricted my parenting time down to every other weekend, no overnights, and 2 hours on Wednesdays, because I was being accused of being an alcohol. I was ordered to 3 months, 3 times a week, alcohol testing that I passed every single one (40 tests). When it was time to review the alcohol test results, my ex's attorney for the day requested that I take a hair follicle test based on my ex stating that the "stress coach" said that my daughters said that they saw me smoking a white substance out of a glass pipe in front of them. I had an attorney at that time, that volunteered me, without my consent, to the hair follicle, which I later was unable to pass due to partaking in an adult Halloween party where I did use cocaine due to the heartbreak of losing my children in such a backwards way. I am not a drug user and have no charges against me for any type of drug and never have. At that point, March of 2015, the Judge ordered supervised visitation and continued hair follicle testing, 1 per month for 10 months. I have been since trying to get my ex to set up supervised visitation, which he has adamantly refused and we go to court again for his contempt. I have since passed a hair follicle test in January of this year. I have not seen my children since October of 2015 and also filed with the Municipal court in the city where he lives and he has a pending charge for access interference. I have not subjected myself to the hair follicle testing since January and honestly don't plan to under the current court orders because I feel they are unwarranted and an abuse of discretion.
Expert:  DrakeLAW replied 11 months ago.

Did you do 10 hair tests in a row for March 2015 through December 2015? Why would you still need to do hair follicle testing if you were ordered only 10 starting in March 2015?

You should be getting supervised time at a minimum and contempt is the right procedure if he is not cooperating. If you comply with the court's drug requirements you will be able to go back to unsupervised parenting time.

Customer: replied 11 months ago.
I guess my main question at this point is if it is legal for a judge to order such extensive drug testing, via hair follicle, or is it an abuse of discretion and can the judge deny my right to supervised visitation because I am not testing?Also is there a way to reverse his order being that there is no history of drug use, other than that one test? I have 43 negative test results for drugs and alcohol already taken?
Customer: replied 11 months ago.
Can the judge refuse to enforce the court orders for supervised visitation even though I am not complying with the testing?
Customer: replied 11 months ago.
Sorry I didn't read the questions above before replying. No, I have not completed the 10 hair follicle tests, I have only completed 1 of the 10 which I passed. If I were to complete 10 test in a row, I would be partially bald which is why I am trying to find out if that is an abuse of discretion to order such extensive testing when there is no history of drug abuse.
Customer: replied 11 months ago.
Are you still there?
Expert:  DrakeLAW replied 11 months ago.

Yes, I was doing a little research as I have never been asked if one can have supervised parenting time even though they refuse to do drug tests. There is no statute on it but I think the answer is yes. Keep in mind, family court judges have very wide discretion and only absolute abuse will be overturned.

So yes, the statute specially says 6 months worth of random testing. I actually tend to agree with you that hair for 10 months is excessive.

I suppose what you ought to do is file a Petition to Modify Parenting Time and seek unsupervised parenting time. I think you should only have to test clean for 6 months with random UIs. I haven't heard of 10 hair follicle tests in a row, but it is not shocking to me. You should also motion for contempt on the supervised parenting time to restore that immediately.