You have watched it for years. The missed pickups. Money that goes somewhere and does not come back. The version of your spouse who shows up on a Tuesday night. You know what is going on. What you do not have is proof, and you want the court to see what you see.

You cannot make your spouse take a drug test. Not before a case is filed, and not after. What you can do is ask the court to order one. Before you do, there is something you should understand about how that request tends to come back around.

What substance abuse actually changes in a case

It matters in three places, and they do not work the same way.

1. Divorce Grounds. South Carolina recognizes habitual drunkenness as a fault ground for divorce, and the statute says that ground is construed to include habitual drunkenness caused by the use of any narcotic drug. Note the word habitual. A hard month does not establish a ground for divorce.
2. Alimony. Marital misconduct or fault is one of the statutory factors a court must consider, whether or not it was used as the basis for the divorce — but only where the misconduct affected the parties' economic circumstances or contributed to the breakup of the marriage. The statute also cuts off consideration of conduct that happens after certain events, including the formal signing of a written settlement agreement.
3. Child Custody. Here people expect a bright line, and there is not one. South Carolina's best interest of the child statute lists factors the court must consider, and says plainly that the list is not exhaustive. Substance abuse is not one of the enumerated factors. What is enumerated is the capacity and disposition of each parent to understand and meet the needs of the child, and the mental and physical health of everyone involved.

That is where active addiction does its damage in a custody case. Not as a labeled factor with a box to check, but as something that shows up across several of them at once.

You cannot compel a test on your own

There is no self-help version of this. You cannot demand a sample, and a test your spouse did not agree to give is not evidence you want to spend a hearing explaining.

The route is a motion asking the court to order testing and to set a deadline for it. Where substance abuse is a concern from the beginning, that request is often folded into the initial motion for temporary relief, so it can be taken up at the temporary hearing instead of waiting.

Whether the court grants it turns on what you can show and what else is in the case. No one can tell you in advance what a particular judge will do with a particular record, and you should be skeptical of anyone who offers to.

Expect the order to run both ways

This is the part people do not see coming. When one party asks the court to order drug testing, courts frequently make the requirement mutual. You asked, so now you are both testing, on the same date, sometimes at the same lab.

Before that motion gets filed, have an honest conversation with your lawyer about what your own test will show. The prescription you take legitimately. The edible on vacation last month. The pill a friend handed you during a bad week. We have watched people assure a court they had nothing to worry about and then fail a test they were certain they would pass.

The damage in that moment is not the substance. It is the credibility, and credibility is the thing you cannot rebuild mid-case. Tell your lawyer before the motion goes out, not after the result comes back. Nearly everything is manageable in advance. Very little is manageable afterward.

What kind of test the court orders

The order specifies the type of test, and different tests look back different distances. A urine screen captures a short recent window. Hair follicle and/or nail-bed testing are commonly used where the court wants a longer look-back period.

Which test is ordered changes what a result actually proves. It is worth your lawyer addressing the type of test in the motion rather than leaving it to be sorted out later.

If you are the one who would be tested

Some people reading this are not the one asking. They are the one who would be handing over the sample.

If that is you, tell your own lawyer before anything is filed. An attorney who knows what a test will show can plan around it. An attorney who finds out from the lab cannot. That conversation is protected, and it is the single most useful thing you can do for your position.

Getting an evaluation or starting treatment is worth doing on its own terms, separate from what it does or does not do for your case. If that is where you are, help is available and it does not have to run through a courtroom.

What this means for you

Three things.

1. Do not ask for the test until you know what your own will say. The request is not free, and it very often applies to you.
2. Do not expect a test result to win a custody case by itself. A positive result is evidence of use on a date. What the court is weighing is the effect on a child, and that gets built from a great deal more than a lab report.
3. Do not let the testing question swallow the rest of the case. Substance abuse is one thread in it. Parenting time, the finances, and the shape of the final order are the case.

If you or someone in your family is struggling with substance use, the SAMHSA National Helpline is free, confidential, and available 24 hours a day, 365 days a year, at 1-800-662-HELP (4357).

Stevens Family Law, LLC represents clients in complex and high net worth family law matters across South Carolina. If substance abuse is a factor in your case — on either side of it — we would be glad to talk with you.  You can reach our office at (864) 598-9172, or use the contact form on this page.

This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Whether a court orders testing, and what weight any result carries, depends entirely on the facts of the individual case.