You’ve already gone to court and received the order deciding custody, child support, and visitation in your case. The hard part is over now, right? For a while, visitation went well – until you found out that your ex has been using drugs.

If Your Ex Is Using Drugs, You Have Choices

It is a scary thought for any parent to think of all the “what-ifs” regarding a situation like this. You’re a good parent, but you don’t want to violate the judge’s order. On the other hand, you can’t justify leaving your kids home along with a drug user.

The best way to protect your child and not go against the court’s ruling is to file for a modification of visitation. A modification asks the court to change the original visitation order to protect the child. An easier solution would be to deny the other parent visitation, but that could land you in court for contempt.

Filing With The Right Court

The first step in getting your visitation changed is to make sure you file in the right court. For a court to hear a case, it must have jurisdiction. This means that it has the power under the law to remedy the problem you are facing and addressing.

In Alabama, child support, custody, and visitation cases are handled by either a juvenile court or a circuit court. When you try to modify an order, you’ll usually have to go back to the court that originally issued the order.

Who Makes The Rulings

A juvenile court made the ruling if establishing paternity was a goal in the case. However, a circuit court heard the case if the order was the result of a divorce. When changing an order, you have to return to the right court for the enforcement of the changes. If a circuit court heard the case originally, a juvenile court has the authority to step in and make changes to orders that were issued by the circuit court.

In some cases, both the juvenile and circuit courts can have jurisdiction over the same case. If the juvenile court made a decision regarding the paternity of a child and issued an order, that court would have jurisdiction. If later, the parties married and divorced after the issuance of the juvenile order, the circuit court would’ve heard the case. In this scenario, both the juvenile and circuit courts have jurisdiction and can determine custody, child support, and visitation for any minor children.

Asking For A Change In Visitation

Once you’ve settled jurisdiction, you must ask the court to make a change to the visitation schedule. You’re going to need to file a petition with the court. In the petition, you’re asking the court to make changes to the original order. In addition, you’re also giving the judge reasons for why you want the changes made.

The court does not make changes to orders just because one parent asks for them. If you’re asking for changes, you have to show a change in the circumstances since the court issued the original order. You also need to show the court that the changes are in the best interests of the child. In legalese, this is called the McLendon Standard.

This means that the circumstances were serious enough to warrant a change in the original order. If the other parent lost his or her house, got a DUI, began dating an abusive partner, or started using drugs. To get a visitation order changed, the serious change has to affect the child. It has to be in the child’s best interests for the court to change visitation. If the circumstances have no potential to affect the child, it’s not enough for the judge to modify the visitation order.

Ask For The Changes You Want

When asking for a change in visitation, you have to be explicit in telling the judge what you need to be changed. In the petition to modify the visitation order, you have to state what kind of visitation change you’re seeking. If you’re looking to change from unsupervised visitation to supervised visitation, you have to state that in the petition. If you’re looking to deny visitation altogether, you must explicitly state that in the paperwork. The petition must also include details on the change in circumstances that caused you to file the modification request. You need to make it clear why the change in visitation is in the child’s best interests.

What Happens After You’ve Filed The Petition

Once you’ve filed the petition, the court will not simply make the changes you have requested. The other parent gets notice of the claims against him or her. They will have the chance to respond to the claims.

You will also need to fill out and file a summons, along with the petition, with the court. The summons has the other parent’s address so he or she can get notice of your proposed changes. The local sheriff’s office will serve the other parent with the summons and complaint. Once the other parent gets those documents, they have their notice and will have time to respond to the petition.

Following service on the other parent, the court sets a hearing. You and the other parent will get a notice of the date, time, and location of the hearing. In a courtroom in front of a judge, the hearing takes place.

When It’s Time To Make Your Case

During the hearing, you will be able to make your case about why you need the changes in visitation. You can bring witnesses and evidence, and you can also testify in front of the judge. The other parent can also do the same thing with his or her own witnesses, evidence, and testimony. If you’ve claimed that your ex is using drugs, the court may order drug testing on one or both parties. The judge may wait on making a decision until the results of the drug testing come back. In the meantime, the judge may make a temporary decision that lasts until he or she makes a final decision. This is called a pendente lite order – or an emergency order.

At the hearing, you have to show the judge that you can meet the McLendon Standard. You or a witness will have to testify or provide evidence that shows what serious change has happened since the issuance of the original visitation order. You must show that the change affects the child in a negative way. In addition, you must show that changing the visitation order would be in the best interests of the child. This is easier if you have proof that the other parent has been using drugs, especially if he or she has used drugs around the child or has driven while under the influence of drugs.

Ultimately, The Judge Decides

After both the other parent and you have made your case to the judge, the judge will make a decision on whether or not to change visitation. If the judge decides to agree to change visitation, he or she may change it like you’ve asked – or change it in a different way. If the other parent is on drugs, the judge may order him or her to complete drug and alcohol classes or undergo random drug testing. The judge might make a plan for the other parent to complete classes and test clean for drugs for a certain period of time before allowing the visitation schedule to return to “normal.”

Overall, the judge is trying to make a decision that will benefit your child the most. It is important for both parents to have involvement in the life of the child. If the child is in a dangerous environment created by a parent, then it is better to keep the child away from that situation. All in all, the judge will do his or her best to craft an outcome that will keep the child safe while allowing the other parent a chance to stay in the child’s life.

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    About The Author

    Charlotte Christian, Esq. is a family and divorce lawyer and founder of Charlotte Christian Law. Born and raised in the Yellowhammer State she still calls home, Charlotte is committed to helping those who experienced loss overcome their hardships and build a new life, stronger and more resilient than they were before. No stranger to trauma herself, including enduring the sudden losses of her father while a young child and husband after 10 years of marriage, Charlotte knows what it means practically and legally to put the pieces in place to create a future filled with security, hope, and opportunity, and find happiness once again. An avid sports fan, you can find Charlotte supporting SEC Athletics.

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