Substance abuse testing before temporary hearings

Posted Tuesday, September 25th, 2012 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In the South Carolina family courts it is almost a reflexive practice for attorneys to file a motion for temporary relief, seeking all the relief the client will seek at the final hearing, at the same time they file the initial complaint.  Typically this strategy is a good one.  However parties are frequently living under the temporary order for a year or more while the case proceeds through litigation and gets set for trial.  Often the court’s temporary order sets the tenor for the case: a party who achieves successful results in the motion for temporary relief is likely to keep those successful results at trial and a party who fails to achieve his or her goals in the temporary motion is much less likely to achieve those goals through subsequent negotiation.

Thus, when some evidence gathering will increase the likelihood of achieving successful results at a motion for temporary relief it is generally advantageous to defer that motion and seek procedural relief related to this evidence gathering first.  This is especially true when substance abuse by the opposing party is merely suspected.

In the twenty years I have practiced family law the ability to test for substance abuse has improved markedly.  Hair and urine testing are both more accurate and designed to detect things like prescription drug abuse.  Hair tests can detect substance abuse for a period of three to six months but cannot detect alcohol use.  Urine tests can detect very recent substance abuse. Further, two tests have developed to uncover heavy recent alcohol use: the Carbohydrate Deficient Transferrin (CDT) test and the Gamma-glutamyl Transferase (GGT) test.

The CDT test is to determine heavy alcohol use within the past 1 to 4 weeks or longer. The GGT liver enzyme test is to determine liver damage due to excessive alcohol consumption. The CDT testing is approved by the Food and Drug Administration (FDA) as a biological marker for· recent heavy alcohol consumption. The definition of heavy alcohol consumption for most people is the consumption of multiple drinks on a regular (almost daily) basis.  Heavy alcohol consumption for a period of one week or longer can elevate CDT protein above normal. Typically, four or more weeks of heavy alcohol use elevates CDT.

CDT testing is routinely used (and has been for decades) in Europe as a requirement to reinstate a driver’s license after a D.U.I. conviction. CDT testing is well researched with numerous reports published in peer-reviewed scientific journals as effective in determining heavy alcohol use.  All humans have some small degree of CDT present, but within a normal range.  Heavy alcohol use elevates the quantity of this protein above normal. The most advanced %CDT test available is termed the disialo version (dCDT test), and normal range is less than 1.7%.

Typically, heavy alcohol consumption of a chronic nature (months to years) can also elevate GGT liver enzyme. GGT is a liver enzyme that responds to excessive, chronic metabolic burden placed upon the liver. Elevated GGT can be associated with persons who are alcohol dependent. GGT is routinely used as supportive to the CDT test as it is the first liver enzyme that frequently is elevated in persons engaged in heavy alcohol use. GGT is necessary as a supportive test, in that some persons are non-responders to the CDT test.

Because substance abuse raises safety concerns regarding an ability to responsibly parent, it is a significant factor in determining child custody and visitation.  Because fault is a factor in setting alimony, substance abuse can be a factor in setting alimony.  Thus, in cases in which substance abuse by the opposing party is suspected and alimony or child custody/visitation will be an issue, I hold off on filing a motion for temporary relief and file an expedited motion for drug testing first–seeking an expedited hearing because the accuracy of these tests declines with time if the opposing party has the ability to curtail his or her use until a sample can be taken.  To avoid the claim that my client is merely trying to cause the other party to incur fees, I have my client agree in the motion to initially pay for the costs of these tests.

I have yet to have the family court deny my request for an expedited hearing or deny my request for substance abuse testing.  Obtaining the test results before seeking temporary relief often narrows the contested issues.  If the test results are negative, my client can be more comfortable offering joint custody or liberal visitation.  If the results are positive, my client can take a much more aggressive approach on limiting visitation and seeking spousal support.

The long range consequences of seeking temporary relief when concerns about the other party’s substance abuse cannot be substantiated are too significant to risk rushing into temporary hearings prior to substance abuse testing.

3 thoughts on Substance abuse testing before temporary hearings

  1. paul messerschmidt says:

    there is confusion over the ‘cdt’ test and the ‘d-cdt’ test.

    while the former has been approved by the fda, the ‘d-cdt’ test HAS NOT BEEN APPROVED BY THE FDA, nor have any interpretative guidelines been established for the d-cdt test.

    fda-approved cdt testing must be conducted by these approved labs: Axis-Shield PLC, Bio-Rad Laboratories, Roche Diagnostics

    from the limited information on the web, even teetotalers can achieve a d-cdt reading of 1.6, the level considered by some to be indicative of abuse, clearing calling into question the validity of this proprietary test.

    requiring the administration of the d-cdt test — without prior, informed consent of this lack of fda approval — may be a violation of federal law, and must be stopped until such fda approval has been granted and interpretive guidelines established.

    1. Since this blog was first written the family court has shifted to using the dCDT test.

  2. paul messerschmidt says:

    however, the d-cdt test is a proprietary, laboratory-developed test (ldt), that has not been approved by the fda, nor have any peer-reviewed interpretive guidelines been established.

    the fda is currently evaluating all ldt’s, and is likely to place them under significantly stricter regulatory guidelines, which could invalidate any cases that have used them, as the results are questionable, and the proponents are making misleading claims about the validity and efficacy of these tests that only they can do.

    if the medical professionals who advance these tests want them to be widely accepted, they should take the necessary steps to have them approved by the fda.

    (note: the fda has several approved cdt tests, which can be performed at numerous labs around the country.)

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