I’m a Co-Parent. How Will a Florida Arrest Impact My Child Custody Case?

If you are a co-parent sharing custody of your child(ren) with another, you are right to be concerned about what a Florida arrest will mean for that arrangement. This is true regardless of whether you’re actively embroiled in a custody battle - though certainly, it could become a more immediate issue if you already have an open, active custody or parenting time dispute before the courts.

As experienced Fort Lauderdale criminal defense lawyers, we know how important it is for dedicated parents to play an active role in their children’s lives. A pending criminal charge can be a significant impediment for a co-parent, particularly if one is facing the prospect of incarceration. But even misdemeanor convictions have the potential to result in limitations on custody and parenting time.

Furthermore, Florida family courts may take this action even without a conviction. It’s true that in the criminal justice system, you are considered innocent until proven guilty. However, the family courts that weigh disputes on child custody and parenting time examine what is in the best interests of the child.

An existing child custody order is unlikely to be altered, unless there is a material change in circumstances. An arrest, conviction, or incarceration of one of the co-parents might be considered a “material change in circumstances,” depending on the nature of the charges.

For instance, arrest for a minor charge like shoplifting might not be enough to sway a Florida family court judge to upend an existing child custody order. However, if the charge is DUI - especially if the kids were in the car or there was an accident involving injuries - that could certainly be considered substantial enough to amend a custody or parenting time agreement. But even with minor charges, such as low-level drug possession, the court may take it into consideration when weighing whether it represents a larger pattern of recklessness - which certainly can be factored into Florida child custody determinations.

Florida criminal courts are charged with processing allegations of state criminal law and protection order violations. Family courts, meanwhile, are focused on the safety and well-being of the child above pretty much all else. In family court, both parents are afforded the presumption that each is equally capable and responsible when it comes to caring for and protecting their kids. An arrest and/or conviction has the potential to damage that presumption.

In most child custody cases, it’s going to come down to this: Do the allegations or criminal procedures impede or call into question your ability to safely care for and provide for your child? If the answer is no, there’s a good chance the custody arrangement won’t be substantially impacted.

More serious allegations of violence (including domestic violence), sexually-motivated offenses, or child neglect/endangerment are the most likely to have a direct impact on your rights as a parent. Such offenses may prompt the co-parent to seek an emergency (ex parte) hearing, and will probably trigger a Florida Department of Children and Families (DCF) investigation. This is true even if your child wasn’t an alleged victim.

As Broward criminal defense lawyers, our main goal is helping clients navigate the criminal justice system. Civil matters before family courts and DCF are entirely separate. You may want to hire another attorney to help you navigate those systems, one who specializes in family law and child custody, to represent you.

That said, having a skilled criminal defense attorney who understands the interplay of these cases is an imperative. Because while each system has its own goals, burdens of proof, and processes, there is the undeniable potential for intersectionality. Evidence gathered by law enforcement in a criminal case might be used by social workers with DCF. Information gleaned by DCF could be reviewed in family court. Testimony given in family court could be used by prosecutors in the criminal case. The systems are separate, but evidence can be (and often is) shared.

A Florida arrest will not automatically cause you to lose custody of their kids and/or be required to have their parenting time supervised. But certain criminal allegations are automatically going to raise the question of whether your children are safe in your care. Our Fort Lauderdale criminal defense team is committed to doing everything in our power on the criminal justice side to minimize those impacts.