Change of Custody Denied Despite a Positive Drug Test

[mamahey]

My question involves a child custody case from the State of: Pennsylvania

I have been fighting for primary physical custody of my DD for the past 5 yrs. The court we are in takes a long time with 6 months between hearing dates. We recently finally made it to trial phase. Father has primary now. I walked out of her life 9 years ago due to a serious drug addiction. Father was living with his own mother at the time so even with his own drug use, it was better than her being in my care and her grandmother was there. I am now 7 yrs. clean and have been fighting ever since. Father has tested positive for cocaine, benzos (prescribed) and opiates (prescribed) in 2011 and 2013. My drug tests from those years were negative. On day of the trial last week, both father and I were drug tested AGAIN. We spent the ENTIRE day in court and because the case was not finished is was listed to continue. (YES, 6 months from now) My test from trial day was negative. He came back positive AGAIN for cocaine and was still allowed to walk out of the court with my DD. He was ordered to follow-up the following day with a hair follicle test. If he doesn't show or tests positive custody will immediately change hands (however this is not in the temporary order but was said on the record). Father has been primary caregiver since birth due to the fact that he is disabled and I had to work full-time when we were married and then I fell into my own abyss. I understand that is a HUGE deal. however, is that truly more important than a safe, healthy, drug-free home being an available alternative to her current drug fueled home? AND, if no action is taken with this hair follicle test when it comes up positive, or he is a no-show, what is my next step? Wait 6 months? File an emergency petition. The Judge should take action as his words were custody will immediately change hands with a positive hair follicle result. But, this judge is insane. Court was a three-ring circus, so I have to take his words with a grain of salt. I know I will have to have my attorney take action. I guess I am really just venting because this is just inconceivable to me. I have done serious research since we were in court and it seems to me there is nothing that would come up positive for cocaine metabolite except cocaine. Well, the few things that could (liver disease, kidney disease, amoxicillan) do not apply to father. I am just completely crazed by this whole situation. Is there any recourse now? My concern is for my daughter and I feel as though I am beating my head against a wall.

[Mr. Knowitall]

The fundamental issue here seems to be that you walked out of the child's life nine years ago, leaving her in the care and custody of your ex-. A positive drug test, of itself, doesn't tell you much of anything about the nature or extent of the drug use or its effect on parenting.

The judge apparently wants a hair follicle test to try to determine if your ex- is positive for drugs other than cocaine. You were there and we weren't, so you're in a better position than us to explain the judge's rationale.

If the judge finds that your ex- is continuing to abuse drugs, single or multiple, the court will consider that face when evaluating the case under the best interest factors. It's not as simple as, "If you use street drugs, you lose your kids."

(a) Factors. -- In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.


(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.


(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).


(3) The parental duties performed by each party on behalf of the child.


(4) The need for stability and continuity in the child's education, family life and community life.


(5) The availability of extended family.


(6) The child's sibling relationships.


(7) The well-reasoned preference of the child, based on the child's maturity and judgment.


(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.


(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.


(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.


(11) The proximity of the residences of the parties.


(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.


(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.


(14) The history of drug or alcohol abuse of a party or member of a party's household.


(15) The mental and physical condition of a party or member of a party's household.


(16) Any other relevant factor.

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