This is my fourth post in my series on how child custody is impacted in Melbourne and other Florida areas when a parent is arrested for drug charges. My last article discussed how drug arrests affect child custody cases. The Family Court will always evaluate every case and determine if a modification is in the best interests of the child. When a parent has been arrested for drugs, the Court is exceptionally strict and will likely find that it goes against the best interest of the child. Establishing grounds to modify the court order in such a case requires a parent to follow the specific requirements of Florida law and to attend a hearing. In this article I will discuss how the family court handles child custody matters involving a drug arrest. If you need assistance, then contact my office today to speak with a Melbourne lawyer.
The first step for a Melbourne parent to change child custody is to file a Motion
A child custody order includes a parenting plan that sets forth the schedule of custody or visitation the child has with each parent. To change a child custody order, the parent must first file a Motion requesting that the order be modified because of a material change in circumstances. The Motion must be filed with the family court and contain grounds for why the prior parenting plan should be modified. The Motion should also include a proposed updated parenting plan you are asking the court to adopt considering the change of circumstances. The proposed parenting plan should be comprehensive and include who should have primary custody, and whether the other parent’s visitation should be suspended or supervised. At the hearing the Court will consider evidence presented by both parties supporting or refuting the proposed changes.
In the event of a parent’s arrest for drug- related charges, the judge will likely order a temporary change of custody and set a trial for the determination of a final order. Most courts will require a trial before a permanent change is ordered. If a parent is incarcerated long-term, it is probable that custody will be changed, and a new custody arrangement will be implemented immediately. The Court will need to consider the outcome of the criminal charges against the parent. It is clearly against the best interests of a child for a parent to be incarcerated and unable to support the minor child. The Judge will always put the needs of the child before the parent in these situations to protect the child.
Florida courts may not require a trial to change custody following a drug arrest
The Family Court will need objective evidence to change a custody order. The arrest of a parent is usually sufficient evidence to show the parent is unfit to have visitation with the child. In the case of drug use of a parent, the Court will allow a process of discovery to disclose the facts surrounding the specific circumstances. However, if a parent has been convicted and sentenced to a prison term, the Court may issue a final order without discovery. In these cases, the Judge will consider the incarceration adequate evidence to modify the custody order. The Court desires to promptly address the parenting plan to ensure the child’s interests are protected and, in these instances, may not require a trial to change the custody order.
Any time a parent is arrested, and minor children are involved, the Family Court considers this a very concerning and serious situation. It is important to be prepared for a hearing for a child custody change. If you are a parent and your ex has been arrested for criminal drug charges, then it is imperative you speak with an attorney immediately. Contact my Melbourne, Florida office today to speak with a family lawyer about your matter. My office also serves the Brevard County areas of Titusville, Cocoa, Palm Bay, Grant, Valkaria and Rockledge, as well as the Indian River County areas of Fellsmere, Sebastian, Vero Beach, Indian River Shores, and Orchid.