Spoliation is defined as the act of losing, altering, or destroying evidence. In 1852, the Texas Supreme Court in Cheatham v. Riddle,8 Tex. 162, 167 (1852). held that “everything is to be presumed in odium spoliatoris.” Meaning that everything is to be presumed against the wrongdoer so that, to the extent possible, the innocent party is restored to where they should have been. While spoliation is normally applied to documentary and digital evidence, broadening the spectrum of applicable evidence in family law drug cases has the ability to streamline the issues in the case to a simpler resolution to protect the children of the suit.

Family law cases are known to be volatile due to the myriad of emotions the litigants experience before, during, and after the case. Fleeting emotions can frequently erase rational conduct and thought, and violations of interim and temporary orders during the pendency of a custody and divorce case can quickly become the norm. Add a substance use disorder (SUD) to the fray, and a recipe for violations of court orders may be a daily occurrence. The National Center on Substance Abuse and Child Welfare estimates that over sixty percent of removals by child welfare agencies in Texas were due to alcohol abuse and drug use. SUD’s are not specific only to CPS cases and are quickly becoming a trend in private custody cases.

Court-ordered drug testing is used regularly in private custody cases and can 1) absolve the accused of wrongdoing, or 2) confirm the suspicion of drug use. However, the orders are useless to protect the children who are the subjects of the suit when the parent does not comply with the drug testing orders. Rather than file an enforcement action to hold the noncompliant parent in contempt of court, a motion for sanctions for spoliation of the evidence can give the case the teeth needed to protect the children of the suit. Unlike an enforcement motion that may financially sanction a party or subject the party to unlikely short-term incarceration, only a sanction against the wrongdoer can make the innocent party whole by establishing a positive test result against the wrongdoer.

In order to prevail on the motion, the court must find that 1) the spoliating party had a duty to reasonably preserve evidence, and 2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). A duty to preserve evidence arises when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. Id, at 21. In this instance, the party knows that the evidence in his or her possession will be material and relevant to that claim, which is probably why they are noncompliant. The alleged drug user is the only person who has custody and control of the evidence contained in and on his or her body because the drug testing is conducted by samples of urine, fingernail clippings, or hair strands from the party. The court’s order for the parent to submit to drug testing further compounds the duty to preserve the evidence through the submission of the body samples.

Noncompliance with the court’s order for drug testing shows an intentional breach of the duty to preserve the evidence because the party acted with the subjective purpose of concealing or destroying discoverable evidence. At a minimum, the destruction of the evidence by the passage of time and normal bodily functions of the parent that eradicate the evidence contained in and on the person can establish negligent spoliation that irreparably deprives movant from any meaningful ability to present a claim. Movant must show the court that the spoliated evidence is extremely prejudicial against movant; then establish that a lesser remedy is insufficient to restore the prejudice caused by the noncompliant party. Drug test results are either negative, positive, or inconclusive, all of which are taken at face value in family courts and are nearly indisputable with few exceptions. A lesser sanction of a presumption that the drug test results are positive is not the same as a sanction against the non-compliant party of a finding of positive results for each drug in the drug testing panel requested for each date of missed testing. The judge or jury can disregard a presumption at final trial because a presumption takes into account the weight of evidence while a sanction of a finding of a positive test is indisputable.

As the number of family law cases involving a substance use disorder continues to rise, it is increasingly important that the practitioner utilize all available tools to advocate for their client and seek the best interests of the children. Spoliation sanction can be one of those tools. Published in the Dallas Bar Association Headnotes, September 2022 (https://www.dallasbar.org/docdownload/2011807)


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