Brooklyn, NY asked in Federal Crimes, Family Law, Child Custody and Civil Rights for Massachusetts

Q: Can a judge order a hair follicle test on hearsay? No drug history or evidence. Just hear say from other parent?

My child's father believes that I am using drugs. The reason is because he heard a recording of my current partner and i arguing. That he obtained from a 3rd party, illegally. Also, my partner didn't know he was being recorded. In the audio it uses a slang word for a drug, but that word can be used for anything. T. So the judge ordered my child, who is 15, removed. For me to have no contact at all and have a 51A filed on me for my other child. Then for me to get a hair follicle test. I have no history of drug usage. No drug charges. Never anything like this but because he says it based on a audio taken out of context, a judge has ordered it. Also, we both live in another jurisdiction. Personally, I just think she doesn't like me and he knows her or someone she knows.

1 Lawyer Answer
Brian Waller
Brian Waller
  • Divorce Lawyer
  • Worcester, MA
  • Licensed in Massachusetts

A: The judge can basically order anything that they deem to be in the best interests of the child. If there is a reason for them to be concerned about drug use, they can order a drug test. It doesn't really matter how they came to making that order, unfortunately. You could choose to appeal it, but judges have extremely wide discretion and this type of decision is rarely, if ever, overturned because the decision to have you take a drug test doesn't determine the outcome of the case. If you test positive, the judge can consider your positive test as evidence and make further decisions based on that evidence, as well as all of the other evidence presented.

All of that assumes you go to trial and leave it up to a judge to decide. In nearly all cases, you are much better off coming to an agreement with the other parent so that you have some control over the outcome. If you let the judge decide, anything can happen.

As far as the judge having a bias against you or trying to do a favor for someone, I am pretty confident in saying that wouldn't happen. Would the judge risk their career for your case, or really any case? Highly doubtful. It is much more likely that the judge was having a bad day or annoyed with you for some reason. Some judges hide that better than others. Also, if someone is rude to court staff (clerks, court officers, probation officers, etc.) that information can make it to the judge. So I guess my advice would be to always be respectful to anyone you interact with at the courthouse so you can eliminate the possibility that the judge thinks you are a jerk before the hearing even starts. (and I'm not saying you were, just general advice.)

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