Can a Wisconsin Family Court Order Parental Drug Tests?

 Posted on March 26, 2025 in Family Law

Custody issues are well-known for getting extremely contentious in some cases. To that end, one parent may sometimes request that the other submit to a drug test. This would come into play when one parent believes the other is an unfit parent and does not deserve any level of custody or visitation or is requesting supervised visitation. While a serious drug problem can be a factor in determinations of child custody, it may seem that undergoing drug testing is a violation of the parent’s privacy.  

Yet, Wisconsin Statute Section 804.10 grants the court the authority to make such an order when the mental or physical condition of a person is at issue. In fact, under this law, the court can order a physical, mental, or vocational examination after a motion to show cause is filed and cause is properly shown. Whether there is sufficient basis to request a drug test is within the court’s discretion since the law only requires that some cause be shown and does not require that cause to be compelling.  

If your custody situation is shaping up to be difficult, it is important to have solid legal representation from a respected child custody lawyer. Whether you are the parent requesting the drug test or the parent for whom the drug test is being requested, the outcome is often dependent on having an experienced Milwaukee family law attorney by your side.

What Are the Factors Commonly Used to Determine Custody?

When parents are unable to determine child custody and visitation on their own, a judge will make those decisions. There are a number of factors judges use when making these decisions, but the bottom line will always be whether the decision is in the best interests of the child. The factors considered include:

•  If the child is old enough and/or mature enough, his or her wishes will be considered.
• The mental and physical health of both parents
• The relationship the child has with each parent, as well as with siblings and extended family members
• How well the child has adjusted to his or her current community, home, and school
• The willingness of each parent to promote a healthy relationship between the child and the other parent
• The level of cooperation and communication between the parents
• Any evidence of abuse or neglect of the child by either parent in the past
• A history of drug or alcohol abuse or domestic violence by either parent

 Ordering a Drug Test During a Custody Hearing

While it is not exactly a usual process during a custody hearing to order a drug test for one parent, there are exceptions. If a parent has a history of drug or alcohol abuse but claims to be clean and sober, the court may request a drug test to ensure the safety of the child during visitation. The ordered drug test could be a one-time order, or it could require ongoing drug testing to ensure the child’s well-being.

Considering all this, while the court has the authority to make such an order, enforcing an order for drug testing can be difficult. Further, the penalties when a parent is determined to be in contempt of court for refusing to take a drug test are not well detailed. The only real penalty available in family court would be to remove visitation privileges from that parent or to order supervised visitation.

Since courts are usually reluctant to remove all contact with a parent, supervised visitation would likely be ordered for non-compliance with a drug test order. The court’s authority to order a drug test must come through discovery or as a "just and reasonable provision" for custody and should never be misused by a parent making such a request for unfounded reasons.  

Contact a Waukesha County, WI Child Custody Lawyer

The best course of action for a parent in this situation is to speak to a Waukesha, WI child custody attorney from Bucher, Wolff & Sonderhouse, LLP. Our attorneys are highly experienced in all facets of family law. Call 262-232-6699 to schedule a free consultation.