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(It is likely that this date will be extended, as January 1, 2013 is just the latest in a number of extended sunset dates.) The Legislature felt the need to provide some substantive and procedural guidelines.

Section 3041.5 provides in material part as follows: (a) In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.

If there is no legitimate reason, then the test result is reported to the employer as positive.

Section 13.8 of the Mandatory Guidelines sets forth the procedure for reporting test results to a federal agency.

The trier of fact in a family law action is charged, among other things, with protecting the best interests of the children over whom it has jurisdiction. One means the court has to address the safety of a child is to order drug testing of a parent under Family Code ‘ 3041.5 where there is evidence that a parent is engaged in use of illegal drugs or abuse of alcohol.

Unfortunately, however, the family law statute at issue may restrict the court‘s ability to obtain details concerning the drug test results.

* * * The results of this testing shall be confidential, shall be maintained as a sealed record in the court file, and may not be released to any person except the court, the parties, their attorneys, the Judicial Council, until completion of its authorized study of the testing process, and any person to whom the court expressly grants access by written order made with prior notice to all parties. We know from its text that the family court must order the least intrusive method of testing, and that whatever testing is performed has to be in conformance with procedures and standards established by the United States Department of Health and Human Services for the drug testing of federal employees. The one and only case decided under Section 3041.5, urine tests are used to test federal employees.

So urinalysis is all that can be ordered, no matter how much more scientifically sensitive hair or hair follicle testing might be, or how much more convenient (and sensitive) the use of a Asweat [email protected] might be.

Drug testing varies by the programmatic need for it.

Section 13.3(a) of the Mandatory Guidelines provides for the review by the MRO of all positive, adulterated, substituted, rejected for testing, and invalid test results. 71900 [2008] ‘13.3[a], emphasis added.) The MRO’s staff may thus review and report to the employer a result from the laboratory reported as Anegative.

Staff under the supervision of the MRO may review and report negative and negative/dilute test results to the agency’s designated representative. It is very important to note that in family court there is no MRO.

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If the result of the screen is negative, the MRO informs the employer that the test result is negative.

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