DEBORAH M. v. Superior Court

In this petition we are asked to determine if Family Code section 3041.5, subdivision (a) (section 3041.5(a)) permits courts in custody and visitation proceedings to order drug testing by means of a hair follicle test of a parent whom the court has determined engaged in “habitual, frequent, or continual illegal use of controlled substances.” We conclude the language of section 3041.5(a), relevant federal regulations, and section 3041.5(a)’s statutory history demonstrate that at present only mine tests are allowed. Accordingly, we grant the petition and order the court to vacate its order compelling the hair follicle drug test.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Deborah M. and real party in interest Daryl W. were divorced in 1995, and Deborah was awarded primary custody of their two sons, C.W., who was 14 years old at the time of the instant proceedings, and W.W., who was 18 years old at the time.

In September 2004, Deborah sought to have her child support amended. In response, Daryl filed an order to show cause (OSC) seeking a change in custody and visitation, as well as an order for drug testing. In support of the OSC, Daryl submitted a declaration from…