The Complexities of Hair Follicle Testing in Minnesota Courts

Chemical dependency allegations in family law cases often result in courts imposing testing and restrictions on parents to ensure child safety. However, in Minnesota, courts are increasingly requiring such testing even when: (1) there is little or no evidence connecting chemical use to inadequate parenting; (2) allegations are made without prior expressed concern during the intact family structure; and (3) independent evidence of substance abuse, such as criminal records or child protection reports, is absent.

A particular point of concern is the use of hair follicle testing to detect chemical usage. This method gained notoriety from Britney Spears' 2007 incident, where she allegedly shaved her head to evade testing in a custody battle with Kevin Federline. While California, where the incident occurred, has safeguards within its statutory schemes limiting testing to urine specimens in conformity with U.S. Department of Health and Human Services standards unless agreed otherwise, Minnesota lacks such legal protections.

Unlike California, Minnesota's family law legislation does not specify standards for requiring chemical use testing, remaining silent on admissible test types or necessary standards. Consequently, parents might undergo intrusive tests with questionable efficacy, such as hair follicle testing, which raises significant concerns.

Firstly, Minnesota statutes don’t define burdens of proof needed for intrusive testing mandates. Often testing is based solely on unsupported allegations between parents, under misguided cautionary reasoning that such testing is harmless. This neglects the invasive nature of chemical testing, which should necessitate a higher proof threshold before becoming compulsory.

Secondly, the power to mandate chemical testing is often delegated to non-judicial individuals, like custody evaluators or Guardians Ad Litem. These individuals can require testing without statutory standards, allowing tests based on insufficient evidence.

Thirdly, hair follicle testing itself is notably invasive. It requires taking about 90 to 120 strands from the root, causing small bald patches. Beyond the physical intrusion, the testing platform is fraught with issues:

• Lack of Standardization: Without standardized testing procedures, results can vary significantly, resulting in unfair child custody decisions. The U.S. Department of Health and Human Services does not endorse hair follicle testing for federal employees, supporting only urinalysis.
• Time Variation: Although typically screening for a 90-day period, tests can detect chemical traces for up to a year.
• Detection Sensitivity: With significantly lower detection thresholds than urine testing, even microscopic drug traces may yield a positive result, affecting parent-child time unfairly.
• False Positives: Prescription medications, certain diet pills, or hair contaminants from other sources can cause false positives. Passive exposure, such as mere presence around drug users, can skew results.
• Hair Bias: Dark, coarse hair is more prone to contaminants, making individuals with such hair disproportionately vulnerable to false positives.
• Confirmation Necessity: Positive results require confirmation through gas chromatography/mass spectrometry (GC/MS), a method few labs use.

Additionally, the financial burden of hair follicle testing is considerable, costing upwards of $350 per test. Parties already facing legal fees, Guardian Ad Litem expenses, and other costs may suffer financially from unnecessary testing.

Perhaps most concerning is how a positive test impacts the parent-child relationship, leading to suspended parenting time or mandated supervised visits, which can occur in unnatural settings with additional costs. A positive result might even lead to mandatory chemical dependency treatment and ongoing testing before parenting time can be resumed.