Evaluating and monitoring drug and alcohol use during disputes

Assess substance use, recommend treatment, prepare a monitoring plan

lcohol or drug use is frequently reported as a fac- tor in ; 10.6% of divorcing couples list it as a precipitant for the dissolution, surpassed A 1 by infidelity (21.6%) and incompatibility (19.2%). An effec- tive drug and alcohol evaluation and monitoring plan dur- ing a child custody dispute safeguards the well-being of the minor children and protects—as much as possible—the parenting time of drug- or alcohol-involved parents. The evaluation maneuvers discussed in this article most likely will produce a complete, fair, and transparent evaluation and monitoring plan. An evaluator—usually a clinician trained in diagnos- ing and treating a substance use disorder (SUD) and other NWPHOTOGUY psychiatric illnesses—performs a comprehensive alcohol/ Laurence M. Westreich, MD drug evaluation, prepares a monitoring program, or both. Associate Professor of Clinical Psychiatry The evaluation and monitoring plan should be fair and Division of Alcoholism and Drug Abuse transparent to all parties. Specific evaluation maneuvers, Department of Psychiatry New York University School of Medicine such as forensic-quality testing, detailed interviews with New York, New York collateral informants, and ongoing collaboration with attorneys, are likely to yield a thorough evaluation and an effective and fair monitoring program. The evaluating clinician should strive for objectivity, accuracy, and practi- cal workability when constructing these reports and moni- toring plans. However, the evaluator should—in most cases—not provide treatment because this likely would represent a boundary violation between clinical treatment and forensic evaluation.

Disclosure Current Psychiatry The author reports no financial relationship with any company whose products are mentioned in 30 April 2017 this article or with manufacturers of competing products. Addiction-specific evaluation Table 1 maneuvers Steps for assessing drug As in all forensic matters, the evaluator’s or alcohol use during a child report must answer the court’s “psycho- legal question as objectively as possible”2 custody dispute rather than benefit the subject of that report. Interview all relevant adult parties (Describing the individual being exam- Collaborate with treating clinicians, monitors, ined as the “subject” rather than “patient” and attorneys emphasizes the forensic rather than clinical Review all medical records nature of the evaluation and the absence of Use forensic-quality chain of custody testing a doctor–patient relationship.) Similarly, a monitoring program for drug/alcohol use should be designed to flag use of banned substances and protect the well-being of the • Is the court appointing the evaluator to minor child, not the parents. help gauge a drug/alcohol-involved par- Acting more as a detective than a cli- ent’s ongoing ability to care for a child? nician, the evaluator should maintain a • Is an attorney looking for advice on Clinical Point skeptical—although not cynical or dis- how to best present the matter to the court? A monitoring respectful—attitude when interviewing • Is the evaluator expected to present individuals who might have knowledge of and maintain a position in a court proceed- program should be the subject’s drug or alcohol use, including ing against another evaluator in a “battle of designed to flag use friends, co-workers, therapists, physicians, the experts?” of substances and and even the soon-to-be-ex spouse. These • Is the evaluator to consider only drug protect the well- collateral informants will have their own use? Only illicit drug use? being of the child, preferences or loyalties, and the examin- • Is the subject banned from using the ing clinician must consider these biases in substance at all times or just when she (he) not the parents the final report. A spouse often is biased is caring for the child? and could exaggerate, emphasize, or A clear understanding of the evaluator’s invent addictive behaviors committed by mission is important, in part because the the subject. subject must fully comprehend the plan to Examine available medical and psycho- consent to having the results disseminated. therapy records to discover any latent drug To foster an effective collaboration with or alcohol use, as well as patterns of slips, legal personnel the evaluator should frame relapses, or binges, to determine a likely the final report, testimony, and monitoring prognosis. Any potentially useful collateral plan using clinical rather than colloquial informants or records that are not provided language. To best describe the subject’s to the evaluator should be noted in the final situation, diagnosis, and likely prognosis, evaluation report, because they might con- these clinical terms often will require expla- tain relevant information that could change nation or clarification. For example, urine the report’s recommendations for a moni- drug screens (UDS) should be described toring program. Table 1 provides addiction- as “positive for the cocaine metabolite ben- specific maneuvers to employ in a child zoylecgonine” rather than “dirty,” and the custody dispute. subject might be described as “meeting cri- teria for alcohol use disorder” rather than an “alcoholic” or “abuser.” Using DSM-5 Collaboration among attorneys terminology allows for a respectful, reason- Discuss this article at and evaluators/monitors ably reproducible diagnostic assessment www.facebook.com/ CurrentPsychiatry A strong collaboration between the judge that promotes civil discussion about dis- and the attorney requesting a drug/alcohol agreements, rather than name-calling in the evaluation or monitoring plan likely will courtroom. Professional third-party evalu- result in a better outcome. This collabora- ation and monitoring programs in custody tion must begin with a clear delineation of dispute proceedings can de-escalate the Current Psychiatry the report’s purpose: tension between the parents around issues Vol. 16, No. 4 31 continued on page 39 continued from page 31 of substance use. The conversation becomes Table 2 professional, dispassionate, and focused on Essential elements of a child the best interests of the child. custody drug- and alcohol- Use of appropriate language allows the evaluator to expand the parameters of the monitoring program report or recommend an expansion of it. If Define the relevant substances a drug/alcohol evaluation finds a relevant Construct a workable and effective testing mental illness—in addition to a SUD—or protocol finds another caregiver who seems incom- Select random, scheduled, or for-cause testing petent, the evaluator might be profession- Define the consequences of a positive or missed test ally obligated to bring up these points, even if they are outside the purview of the requested report and monitoring plan.

usually to protect the child from possible Planning a monitoring program harm caused by a parent who uses alcohol If the evaluation determines a monitoring or drugs. However, this narrow goal often Clinical Point plan is indicated and the court orders a is expanded to allow testing for drugs/alco- Although addiction testing program, the evaluator must design hol at all times, because the parent’s slip or a program that accomplishes the specific relapse could harm the child in the long or clinicians usually goals established by the court order. The short term. request a full screen, in evaluator might help the court draft that the legal sphere, often plan, but the evaluator must accommo- Describe consequences. A carefully struc- only the problematic date the final court order. Table 2 lists vital tured definition of the consequences of substances are aspects of a monitoring program in a child a positive or missed test is an important custody dispute. aspect of the monitoring program. In pro- tested for tecting the best interests of the child, the Describe goals. A court-ordered monitor- consequences usually include the immedi- ing program includes: ate transfer of the child to a safe environ- • a clear description of goals ment. This often involves the person who • what specific substances are being receives the positive test result—usually tested for with a physician monitoring the testing— • how and when they are being tested for notifying the other parent or the other par- • who pays for the testing ent’s attorney of the positive test result. • what will happen after a positive or missed test. The situation will determine whether Testing random, scheduled, or for-cause testing is Although an important part of evaluation indicated. and monitoring, drug and alcohol testing A frequent sticking point is the decision alone does not diagnose a SUD or even mis- as to whether an individual can use alco- use.3 Adults often use alcohol with no con- hol or other substances while he (she) is sequence to their children, and illicit drug not caring for the child. A person who does use is not a prima facie bar to parenthood or not meet criteria for a SUD could argue taking care of a child. Also, the results of a that abstinence from alcohol or any sort of thorough alcohol or drug evaluation can- testing is unwarranted when another per- not determine the ideal custody arrange- son is taking care of the child. The evalua- ment. The court’s final decision is based tor should provide input, but the court will on a more wide-ranging evaluation of the determine the outcome. family system as a whole, with the drug/ alcohol issue as 1 component. In addition, Develop a testing program. The evalua- the court could use the results of a forensic tor should develop a testing program that examiner’s assessment to advocate or man- Current Psychiatry accomplishes the goals set out by the court, date the appropriate treatment. Vol. 16, No. 4 39 continued Table 3 for their patients, in the legal sphere, often Estimated duration of only the problematic substances are tested detectability of drugs and for, which are listed in the court order. The alcohol by techniquea evaluator should request substances that are clinically relevant or appear likely to be Substance tested Time used by the subject be tested; however, the Blood final list of substances often is determined Child custody Cocaine 24 hours by negotiations between lawyers rather disputes Opioids 24 hours than the judgment of a clinician. Whatever Breath tests are chosen, the monitor should know Alcohol 2 to 12 hours the detectability time for each substance in Hair the relevant tissue (Table 3),4-7 which varies Cannabis 3 months based on the laboratory or device’s prede- Benzoylecgonine 3 months termined level of detection, the technology (cocaine) used for the test, and physical variables of Opioids 3 months the testee. Clinical Point THC 3 months Saliva UDS, the most common test, is non- Using DSM-5 Alcohol Minutes to hours invasive, although awkward and intrusive Cannabis Minutes to hours terminology allows for the subject when done with the strictest Benzoylecgonine Minutes to hours for a respectful “observed” protocol. Most testing protocols Opioids Minutes to hours diagnostic do not require a “directly observed” urine THC Minutes to hours collection unless there is a suspicion that assessment rather Transdermal the testee has substituted her (his) urine for than name-calling Alcohol Continuous a sample from someone else. Breath testing, Urine in the courtroom although similarly non-invasive, is only Amphetamine 48 hours useful for alcohol testing and can detect use Androgenic anabolic 2 weeks to 18 steroids months only several hours before the test. Benzodiazepines 3 days The urine test for the alcohol metabolites Benzoylecgonine 2 to 3 days ethyl glucuronide (EtG) and ethyl sulfate Cannabinoids 3 to 80 days (EtS) points toward alcohol use in the previ- Alcohol biomarker (EtG) 1 to 3 days ous 3 days, but the test is plagued with false- positives at the lower cutoff values.8 EtG can Morphine 48 hours be accurately assayed in human hair.9 Phenobarbital ≥7 days aThese limits vary based on the subject’s physical characteristics, the selected level of detection in the Other tests. Dried blood spot testing for laboratory, and the testing technology phosphatidylethanol is accurate in find- EtG: ethyl glucuronide; THC: tetrahydrocannabinol Source: References 4-7 ing moderate to heavy alcohol use up to 3 weeks before the test.10 Saliva tests also can be useful for point-of-service testing, but the dearth of studies for this methodology With that caveat, the specific tests used makes it less useful in a courtroom set- and the timing of those tests are important in ting. Newer technologies using handheld the context of a child custody dispute. Once breathalyzers connected to a device with the parties have agreed on the time frame facial recognition software11,12 allow for ran- of the testing (ongoing or only during visits dom and “for-cause” alcohol testing, and with the child), the specific substances that can be useful in child custody negotiations. are tested for must be listed. Forensic quality Hair sample testing, which can detect drug testing—often called “employment testing” use over the 3 months before the test, is in clinical laboratories—decreases but does becoming more acceptable in the legal set- not eliminate the possibility of evasion of ting. However, hair testing cannot identify the test. Although addiction clinicians usu- drug use 7 to 10 days before the test and Current Psychiatry 40 April 2017 ally request a full screen for drugs of abuse does not test for alcohol13; and some ques- Table 4 Drug and alcohol testing methods for child custody disputes Technology Pros Cons Urine drug screens Widely available Easily evaded Not physically invasive EtG/EtS (metabolites of alcohol) Can detect use over 3 days False positives at low levels of use Remote alcohol breathalyzer Can be scheduled or random Intrusive: Testee must be alert testing for a random test Hair testing Can detect wide range of drugs Scientific data is sparse although improving Point-of-service testing (saliva, Immediate results Expensive to get a tester to the breath, sweat) testee quickly Ignition lock Can prevent drunk driving Does not monitor testee when she (he) is not driving EtG: ethyl glucuronide; EtS: ethyl sulfate Clinical Point The danger or tions remain regarding its reliability for dif- mining child custody the need for assuring potential danger ferent ethnic groups.14 the child’s physical and emotional safety of the subject’s use Table 4 summarizes some of the most overrules these long-term goals, and the to the child is productive testing methods for child cus- parents’ emotional needs are disregarded. paramount, regardless tody disputes. Selecting the best tissue, In a custody dispute, the conflict between of the diagnosis method, and timing for testing will depend parents vying for custody of their child on the clinical scenario, as well as the court’s is matched by a corresponding tension requirements. For example, negotiations between the state’s interest in protecting between parties could result in a testing pro- a minor child while preserving an adult’s tocol that uses both random and for-cause right to parent her child. testing of urine, breath, and hair to prove The Montana custody dispute described that the individual does not use any illicit in Stout v Stout16 demonstrates some aspects substances. In a less serious clinical circum- typical of these cases. In deciding to grant stance—or less contentious legal situation— custody of a then 3-year-old girl to the father, the testing protocol may necessitate only the presiding judge noted that, although occasional UDS to make sure that the subject the mother had completed an inpatient is not using prohibited substances. alcohol treatment program, her apparent unwillingness or inability to stop drinking or enroll in outpatient treatment, combined Practical considerations with a driving under the influence arrest It is important to remember that drug/alco- while the child was in her care, were too hol evaluation and testing does not provide worrisome to allow her to have physical a clear-cut answer in child custody pro- custody of the child. The judge mentioned ceedings. Any drug or alcohol use must be other factors that supported granting cus- evaluated under the standard used in child tody to the father, but a deciding factor was custody disputes: “the best interests of the that “the evidence shows that her drinking child.” However, what is in the child’s best adversely affects her parenting ability.” The interests can be disputed in a courtroom. judge’s ruling demonstrates his judgment One California judge understood this as a in balancing the mother’s legal but harm- process to identify the parent who can best ful alcohol use with potential catastrophic provide the child with “… the ethical, emo- effects for the child. tional, and intellectual guidance the parent Although a thorough drug/alcohol eval- gives the child throughout his formative uation, an evidence-based set of treatment Current Psychiatry years, and beyond ….”15 However, in deter- recommendations, and a well-planned Vol. 16, No. 4 41 is incapable of error, and always keep in Related Resource mind that the primary goal—and presum- • Stahl PM. Conducting child custody evaluations: from basics ably the interest of all parties involved—is to to complex issues. Thousand Oaks, CA: Sage Publications; 2011. protect the child’s well-being. Acknowledgment References Noach Shapiro, LCSW, assisted in the preparation of this 1. Amato PT, Previti D. People’s reasons for divorcing: gender, article. social class, the life course, and adjustment. J Fam Issues. Child custody 2003;24(5):602-606. 2. Glancy GD, Ash P, Bath EP, et al. AAPL practice guideline disputes for the forensic assessment. J Am Acad Psychiatry Law. 2015;43(suppl 2):S3-S53. 3. Center for Substance Abuse Treatment. Drug testing in child monitoring program all promote progress welfare: practice and policy considerations. HHS Pub. No. in a child custody dispute, the reality is that (SMA) 10-4556. Rockville, MD: Substance Abuse and Mental Health Services Administration; 2010. the clinical situation could change and all 3 4. Macdonald DI, DuPont RL. The role of the medical review aspects would have to be modified. officer. In: Graham AW, Schultz TK, eds. Principles of addiction medicine, 2nd ed. Chevy Chase, MD: American Manualized diagnostic rubrics and formal Society of Addiction Medicine; 1998:1259. psychological testing, although often used in 5. Swotinsky RB. The medical review officer’s manual: MROCC’s guide to drug testing. 5th ed. Beverly Farms, MA: Clinical Point general forensic assessments, usually are not OEM Health Information; 2015. Selecting the best central to the drug/alcohol evaluation in a 6. Marques PR, McKnight AS. Evaluating transdermal alcohol child custody dispute,17 because confirming measuring devices. Calverton, MD: Pacific Institute for tissue, method, and Research and Evaluation; 2007. a SUD diagnosis might not be relevant to the 7. Steroidal.com. How steroid drug testing works. https:// timing for tests will www.steroidal.com/steroid-detection-times. Accessed task of attending to the child’s best interest. March 8, 2017. depend on the clinical Rather, the danger—or potential danger—of 8. Substance Abuse and Mental Health Services the subject’s substance use to the minor child Administration. The role of biomarkers in the treatment of scenario and the alcohol use disorders, 2012 revision. SAMHSA Advisory. is paramount, regardless of the diagnosis. Of 2012;11(2):1-8. court’s requirements course, an established diagnosis of a SUD 9. United States Drug Testing Laboratories, Inc. Detection of the direct alcohol biomarker ethyl glucuronide (EtG) in hair: might be relevant to the parent being exam- an annotated bibliography. http://www.usdtl.com/media/ ined, and might necessitate modifications in white-papers/ETG_hair_annotated_bibliography_032014. pdf. Accessed March 8, 2017. the testing protocol, the tissues examined, 10. Viel G, Boscolo-Berto R, Cecchetto G, et al. and the monitor’s overall level of skepticism Phosphatidylethanol in blood as a marker of chronic alcohol use: a systematic review and meta-analysis. Int J Mol Sci. about testing results. 2012;13(11):14788-14812. The evaluator and monitor should be pre- 11. SoberLink. https://www.soberlink.com. Accessed March 8, 2017. pared to respond quickly to a slip or relapse, 12. Scram Systems. https://www.scramsystems.com/ while remaining vigilant for exaggerated, products/scram-continuous-alcohol-monitoring/?gclid=CI qUr8Kqx9ICFZmCswodI0QKPA. Accessed March 8, 2017. inaccurate, or even deceitful accusations 13. Swotinsky RB. The medical review officer’s manual: about the subject from the co-parent or others. MROCC’s guide to drug testing. 5th ed. Beverly Farms, MA: OEM Health Information; 2015:208. The evaluator should assess all the relevant 14. Chamberlain RT. Legal review for testing of drugs in hair. sources of information when performing Forensic Sci Rev. 2007;19(1-2):85-94. an evaluation and use careful interviewing 15. Marriage of Carney, 24 Cal 3d725,157 Cal Rptr 383 (1979). 16. Marriage of Stout, 216 Mont 342 (Mont 1985). and testing techniques during the monitor- 17. Hynan DJ. Child custody evaluation, new theoretical ing process. Even with this sort of deliber- applications and research. In: Hynan DJ. Difficult evaluation challenges: , , substance ate evaluation and monitoring the evaluator abuse, and relocations. Springfield, IL: Charles C. Thomas should never assert that any testing regimen Publisher; 2014:178-195.

Bottom Line Effective drug/alcohol evaluators in child custody disputes focus on the questions relevant to the matter at hand, employ forensic interview and testing techniques, Current Psychiatry 42 April 2017 and use standard psychiatric definitions and terms.