Legal Question in Family Law in California
I am attempting to ascertain custody of my daughter on the premises that her mom has not lacking on her educational needs. she has missed 21 of 80 days of school. She is 5 and cant even count to 5. Of the whole alphabet (capital and lower case) she didn't get a single letter right. she even referred to some letters as numbers. I have submitted my petition on these grounds and plan to add more. My issue is though:
She is trying to overthrow everything by saying I am an alcoholic and drug user. I am not. there is no evidence that I am. No pictures. No people. Nothing. The courts have asked me to submit to a hair follicle test and I denied because these are all allegations. There is no factual evidence. My issue is that they stated this is a "red flag". I don't see how this is. I don't wanna miss work nor do I wanna feel like my rights are being infringed upon over allegations. It's not that I don't want to comply I cannot miss work at the moment. It would require me to miss work. Can they do this without the burden of proof? I have listed 3 exhibits pinpointing all of the premises I described above and they have yet to even go over this. They're hung up over allegations that have absolutely no proof. I'm feeling a bit discriminated against as a dad. I have proof. I have evidence submitted. Can I invoke the 5th amendment / 14th amendment in family law to avoid furthering these allegations and not missing work until she has submitted evidence that proves beyond a reasonable doubt that I have committed these offenses she has stated? I just cannot comprehend why we won't address the issue and evidence submitted and are hung up over allegations and I just wanna bypass them without taking time out of my day to prove something that has zero foundation. Just hearsay.
TL;DR - Can I invoke the 5th amendment / 14th amendment and call for the burden of proof to bypass the bullshit allegations that have no foundation and get back on track to the matter at hand? (I'm no lawyer so I listed both amendments as apparently they go hand in hand)
1 Answer from Attorneys
First off, I have to tell you that in under five minutes I found four San Diego County sites that offer either Saturday and Sunday or at least Saturday hours. If you think the courts don't know that you can get the test done and not miss work, you are wrong. Telling the courts you can't do it, when they know you can, would cause you to lose in many courtrooms just on that alone.
As for the legal issues: Beyond a reasonable doubt is the standard for conviction of a crime, not the standard for a court to order that evidence be collected. Once there is ANY evidence of a fact in court, the burden shifts to the other side to disprove it. Testimony or a declaration that you are using or are an alcoholic, even if it is a lie, is all it takes to shift the burden of proof to you to prove it is a lie. Your testimony or a declaration written by you that you don't use and aren't an alcoholic then makes it 50/50. The court then has to look for other evidence to decide which way to go.
The 5th and 14th Amendments (you are correct that they are related - the 14th makes the 5th apply to state as well as federal courts) allow you to decline to testify.
It is the 4th Amendment that prohibits UNREASONABLE searches and seizures. A hair follicle test is legally considered a search, but it is hardly UNREASONABLE for a court to require such a minimally invasive test in order to resolve once and for all whether allegations of drug and alcohol use are true or false when deciding the fate of a small child. The 5th Amendment gives you the right to refuse the test, unless the court issues a warrant. However, the court is not prohibited from taking the refusal into account in deciding a custody case.
Try to put yourself in the judge's place. You have one person with no proof saying the other person uses drugs and is an alcoholic. You have the other person with nothing but their own word that they don't use and aren't an alcoholic. All the accused person has to do to prove they are right is find a place that's open on the weekends, have a test done, and the issue is proved true or false. But the one person who has the ability to put an end to the matter refuses to do it. It's not hard to figure out what that tells a judge to believe.
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