Section 3041.5 Of Chapter 2. Matters To Be Considered In Granting Custody From California Family Law Code >> Division 8. >> Part 2. >> Chapter 2.
3041.5
. 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 the 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. This evidence may include, but
may not be limited to, a conviction within the last five years for
the illegal use or possession of a controlled substance. The court
shall order the least intrusive method of testing for the illegal use
of controlled substances or the habitual or continual abuse of
alcohol by either or both parents, the legal custodian, person
seeking guardianship, or person seeking visitation in a guardianship.
If substance abuse testing is ordered by the court, the testing
shall be performed in conformance with procedures and standards
established by the United States Department of Health and Human
Services for drug testing of federal employees. The parent, legal
custodian, person seeking guardianship, or person seeking visitation
in a guardianship who has undergone drug testing shall have the right
to a hearing, if requested, to challenge a positive test result. A
positive test result, even if challenged and upheld, shall not, by
itself, constitute grounds for an adverse custody or guardianship
decision. Determining the best interests of the child requires
weighing all relevant factors. The court shall also consider any
reports provided to the court pursuant to the Probate Code. 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. Any person who
has access to the test results may not disseminate copies or disclose
information about the test results to any person other than a person
who is authorized to receive the test results pursuant to this
section. Any breach of the confidentiality of the test results shall
be punishable by civil sanctions not to exceed two thousand five
hundred dollars ($2,500). The results of the testing may not be used
for any purpose, including any criminal, civil, or administrative
proceeding, except to assist the court in determining, for purposes
of the proceeding, the best interest of the child pursuant to Section
3011 and the content of the order or judgment determining custody or
visitation. The court may order either party, or both parties, to
pay the costs of the drug or alcohol testing ordered pursuant to this
section. As used in this section, "controlled substances" has the
same meaning as defined in the California Uniform Controlled
Substances Act (Division 10 (commencing with Section 11000) of the
Health and Safety Code).