The Issue
A drug test is not a parenting test. It does not determine exactly when or how much of a drug was used, whether the person was impaired, or whether they have a substance use disorder. Most importantly, it tells a judge nothing about whether a parent’s substance use was harmful to their child. New York law establishes careful rules for when family court judges may order drug testing, and how they may consider the limited evidentiary value of a positive test.
Despite this clarity, in 2026, the New York City Family Court attempted to reinstate a pre-pandemic drug testing program that disregarded this framework entirely. The program granted judges unfettered discretion to require parents to “consent” to on-the-spot drug testing. Parents who submitted to testing were required to urinate in front of a court employee. Parents who refused were routinely penalized and assumed to have a substance use problem that posed a risk to their children. Judges unlawfully removed children from their homes based on their parent’s refusal to test.
Despite months of warnings from The Bronx Defenders that reinstating this program would result in constitutional violations, the family court refused to modify the program and planned its reinstatement for June 2026.
Learn more about drug testing and parents’ rights in family court.
The Litigation
We filed a pre-enforcement action in June 2026 to prevent reinstatement of this harmful program. Our case documented how judges abused the program in the past, and argued that reinstatement of the program was likely to result in violations of our clients’ First Amendment right to court access and Fourth Amendment right against unreasonable searches.
Less than 24 hours after filing, the family court agreed to refrain from implementing the program and consider revising it. The family court ultimately committed to significant program revisions on-the-record in federal court. We voluntarily dismissed our case following these policy concessions.
View a BxD attorney declaration describing how judges historically abused this program and unlawfully separated our clients from their children, and a client declaration describing their experience of the program.
View our preliminary injunction brief arguing that the program should be enjoined.
The Impact
The New York City Family Court formally amended its courthouse drug testing program, as written, to prohibit practices that harmed the people we represented in the past:
- Judges may not order testing without a finding of probable cause.
- Judges may not initiate a request, whether directly or indirectly, that a parent “consent” to courthouse drug testing. The Administration for Children’s Services is also prohibited from seeking a parent’s “consent.”
- Judges may not draw any adverse inference from a parent’s refusal to consent to testing.
- Testing is more targeted. The program may be used only in cases involving allegations of substance misuse. Results reported to the judge may be limited to specific substances.
Testing is more dignified. Parents are not guarded by officers while they wait to test, and judges must refrain from announcing test results in the presence of uninvolved observers.
The Next Steps
While these are significant concessions to the program as initially proposed, they do not guarantee that judges will not abuse the program in practice.
To prepare for the new program, the Family Defense Practice has trained our staff – including attorneys, social workers, and parent advocates – on how judges, court staff, and opposing counsel must implement the new program, and how to respond to any abuse of the program that results in unfair treatment of the people we represent.
We will monitor the program closely and encourage all public defenders and other advocates who support families in Family Court to do the same.
If you are interested in how we managed this case, or have questions, feel free to contact Trisha Trigilio, the Director of Impact Litigation, ttrigilio@bronxdefenders.org.