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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 36991
Experience:  16 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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I'm in California and have a current custody order that is

Customer Question

Hi, I'm in California and have a current custody order that is pending a review 12/8. My order states 21. The father must undergo a drug test no later than 5/10/2016 (hair follicle) failure to test has the same consequences as a postive test. After he is to continue testing every 90 days. If he fails to take it or fails he forfeits his rights. He's bullied me about the testing. Claiming I'm just keeping his daughter from him. My question is because he failed to take the first one on 5/10 does that mean he has no rights even if he takes one today pending our court date?
Submitted: 8 months ago.
Category: Legal
Expert:  Barrister replied 8 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

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What does the order state about what happens in the event of a failed or missed test?

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Does it actually state that he forfeits his visitation rights?

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thanks

Barrister

Customer: replied 8 months ago.
I will type the wordage in its order;21. The father shall undergo hair analysis drug screening no later than 5/10/16, at the expense of the father. Failure to test has the same consequences as a positive test result unless the party order to pay for the test fails to pay for the test as ordered.The father than shall continue testing every 90 days with a five day window period (85-95) days.22. If a drug test results is determined to be positive for the presence of illegal substances, then the cost of subsequent drug testing shall become the responsibility of the person who has tested positive until he/she can produce a negative drug test result.23. If the restriction concerning drug use or alcohol is violated as determined by law enforcement or lab test, that period of the violating parents care, custody, and control of the child shall be forfeited to the other parent until violating party can produce clean drug screen at their own expense. Law enforcement shall enforce the turn over of custody upon the receipt of a valid court order and a copy of a drug test results.(He has submitted a recent drug test but as of yesterday the judge only had the results of the old test. Today the courts are closed. It can take 14days for the results. Every other weekend he threatens me to see her without the drug test. I'm not sure if the results came in later that day. He refuses to tell me if he has a copy. Just text late last night "pick them up" and he will take his daughter this weekend with a smile face at the end of his text) my attorney claims he has no rights because he didn't take the first one on 5/10 but I wanted to get a second opinion. I don't want to do anything that will harm my case for the review on 12/8. We went to court yesterday but his attorney asked for a continuation
Customer: replied 8 months ago.
As of right now he has no home. And there is a pending restraining order. But that doesn't protect me from this weekend.
Expert:  Barrister replied 8 months ago.

Ok, then I would interpret that as meaning that he loses his rights to visitation until he provides a clean test result, at which time his visitation would resume. Now whether that is provide a clean test to you, or to the court, it isn't clear.

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But he would have to file a motion with the court for contempt in order to get back in front of the judge to have him order you to resume visitation if you refused after he provided a clean test.

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You could always claim you thought it was fraudulent and the father was scamming you. That on top of him not having a stable home would also strengthen any refusal you may make to let him see the child.

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So if it were my child, I would refuse to allow him to have visitation until the judge told me that I had to do so and maintain the story that you thought he had to submit a valid test result to the court to resume his visitation.. No judge is going to ding you for doing what you feel is best to protect your child..

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thanks

Barrister

Customer: replied 8 months ago.
I'm sorry, it does say the results will be available at the clerks office 14days after testing. As of yesterday when he went to court around 9am the results were not available. Today is a holiday so I have no way of checking.So what your saying is he had to submit the drug test to the judge?
Customer: replied 8 months ago.
He claims he won't take her over because he has no home. I honestly think his behavior is of a text book struck and he has caused so much trauma to my 10yr and our daughter. His argument is I refuse to let him have a relationship with our daughter because he won't be with me. He turned the power off on me last week and continues to make choices that hurt me and our daughter.
Expert:  Barrister replied 8 months ago.

So what your saying is he had to submit the drug test to the judge?

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That is how I would interpret it..

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And with no home, I wouldn't want to let him have any visitation or custodial time with him unless it was supervised...

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The point is that you can tell him no to everything and his only recourse is to go back to the judge and complain. Then the judge makes the final decision about what to do.. So you can force him to take that action before you allow him any type of visitation.

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thanks

Barrister