Family Law Corner: “Winning” Isn't Everything in Custody Battle

It is hardly surprising that this month’s column is devoted to Charlie Sheen.  His actions leading to the cancellation of his show and his comments after that cancellation have been making the news for months.  Although his custody case has been making fewer headlines, he has been in a custody battle with his third wife, Brooke Mueller.  

Mueller and Sheen have twin boys who are almost two years old.  Their marriage fell apart amid allegations of drug/alcohol abuse by both parties and domestic violence.  Both Mueller and Sheen have been in drug rehabilitation since separation.  

According to gossip websites, including TMZ, in the last week in March,  Mueller and Sheen reached a custody agreement.  In the agreement, both will submit to random drug testing three times a month.  If they both pass, then Sheen will have the children every other weekend and one overnight per week and Brooke will have them all other times.  In addition, both parents must have their regular nannies with them whenever they have the children with them.

While it is not clear if the random drug testing was a sticking point between Mueller and Sheen, it is often a sticking point when raised in custody litigation.  California’s Family Code has developed specific provisions allowing for drug/alcohol testing in custody cases as a result of a case, Wainwright v. Superior Court (2000) 84 Cal.App.4th 262.

In Wainwright, the parties were having a custody dispute where mother was accusing father of growing and using marijuana.  Based on mother’s testimony alone, the Court ordered drug testing.  On appeal, this testing was stayed and the appeal court found that a court must have corroborating evidence before ordering testing to protect the constitutional rights of parents.

As a result of this case, Family Code section 3041.5 was developed.   Under this section, drug/alcohol testing may be ordered if “there is a judicial determination based upon a preponderance of the evidence that there is the habitual, frequent or continual illegal use of controlled substances or…alcohol.”

While it appears that Sheen and Mueller have bypassed this issue by agreeing to random drug testing, their widely publicized drug/alcohol related arrests and trips to rehab would certainly lay the groundwork for court ordered testing.