The court debacle featuring pop singer Britney Spears and ex-hubby Kevin Federline is sheer entertainment to tabloid fans, but it is serious news to other lesser known folks waiting on a judge to settle who gets custody of the kids. Drug testing? Driver’s License requirements? Just how far can a court go in examining – and continuously scrutinizing – the intimate secrets of one’s personal lifestyle?  

“Courts have wide authority to order just about anything once physical or mental capability comes into question,” says Joe DuCanto, an attorney considered one of the best in the nation in divorce law. DuCanto was selected by the Leading Lawyer Network as one of the Top 100 Leading Lawyers in Illinois, and then as an Illinois Super Lawyer. Among many professional accomplishments, he pioneered the application of tax law to matrimonial law in the 1950s – and divorce attorneys to this day follow his now famous strategy to gain tax advantages for their clients. 

“Courts can test, and continue to test over time, for mental and emotional stability, drugs and alcohol abuse, even for communicable diseases. It all depends on what the other side brings into question and how the judge decides to weigh the accusation,” says DuCanto.
 
Laws vary from state to state, of course, but judicial power is pretty much limitless anywhere – at least within a given court’s jurisdiction. And, the courts don’t miss a beat in holding the custodial parent hostage.  

“Courts can certainly limit where parents can take children during the pendency of divorce, and in Georgia, once a divorce is filed, you cannot take the children out of the jurisdiction of the court, unless both parents agree or the Court approves,” says George Stern, nationally recognized divorce attorney; founder of Stern & Edlin; Fellow of American Academy of Matrimonial Lawyers (Member, Board of Governors, 1987 to present); and co-author of Domestic Relations. “It is also very common for courts to seize passports of children where there is a concern about flight out of the USA,” he says. 

Even a vacation cruise can be deemed a flight from the U.S., so requirements such as this can be more restrictive than people realize while court is in session.  Most of the heat comes in child custody fights, but a standard issue divorce can be just as burdensome if you’re calling it quits in a “fault” state where a reason must be declared in order for the divorce to be granted. 

“Georgia is a fault state when it comes to division of assets and support so test results can affect the outcome,” says Stern. “Obviously it would have a great effect in custody cases.  I have won quite a few custody cases for men where the mother was a drug or alcohol abuser.” 

However, a failed test – or even several – is not necessarily a sure win for the opposing party. “Everything else being equal, the mother will still get custody if it is decided that her actions do not have an impact on the care of the kids,” says DuCanto. “It’s already been established that taking young kids from the mother is terribly traumatic, and even better quality of care from the father won’t compensate for the loss of the mother.” 

This largely explains how Britney Spears continues to have a shot at custody even though she repeatedly misses court ordered drug tests and most recently outright failed one. Spears blamed the positive drug test results on the use of an inhaler she says she uses to treat her asthma. Which brings on another scare…how easy is it to lose kids and assets based on a false positive drug test result? “Drug testing is damn accurate and carries similar weight in court to DNA testing,” says DuCanto. “It’s highly unlikely that the test will result in a false positive reading.” 

“As far as beating the test – forget it! Won’t happen. People try to beat it all the time, and they always lose,” says DuCanto. The court can order just about anything in your personal life tested and periodically reviewed. Best advice: get everything in order before you file or at least before your court date.  “You can always challenge a court order,” says DuCanto. “but you’d lose.”