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Ask S. Kincaid Your Own Question
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2485
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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My ex husband took me back to court of our custody agreement

Customer Question

my ex husband took me back to court for modification of our custody agreement because i was arrested and the charges were possesion and our agreement states our daughter would not be around that stuff so yes i was arrested all charges were dropped against
me so if i was not charged with any crime why was he able to take my daughter
Submitted: 2 years ago.
Category: Family Law
Expert:  S. Kincaid replied 2 years ago.

The issue is not whether you were prosecuted, but whether or not you were using drugs. Even if you are not prosecuted, your ex has the right to provide evidence that you were using drugs and the court might believe him. One reason that there are two different standards between family law and prosecution is that to prosecute you, the state has to prove you used drugs "beyond a reasonable doubt." That is very hard to prove. But in family court, the other party only needs to prove that it was more likely than not that you used drugs. So, he doesn't have to prove as much as a prosecutor would in a criminal proceeding. Do you have any other questions?

Customer: replied 2 years ago.
my daughter was taken from me i have visitation supervised once a week how can i get my daughter back the judge asked me to get mental health amongst other things also a cps case was opened because of the charges the cps worker closed the case against e the day my daughter was taken from me sfter court she called me and said she was going to close the case because she did not find anything to support the accusations
Expert:  S. Kincaid replied 2 years ago.

Does the father have any evidence that you had drugs? Based on what evidence was your daughter initially taken from you? For example, did someone claim to see you with drugs? Did someone claim that you had admitted to using drugs? Was there any drug test done? To refute the claims, I need to know what made them think you had used/possessed drugs in the first place.

A few things you can do is to take a hair follicle test to prove that you haven't used drugs for several months. You could also do a chemical dependency assessment (let your ex talk to the assessor so that he can't claim the assessor lacked information) to determine if drugs are an issue for you. And if you were ordered to do a mental health assessment, you must follow through on that. Once you've done all these things, you can bring a Request for Order in which you ask the Court to terminate the order that transferred custody to your ex. You can also submit the records from CPS saying that the case was unfounded. Do you have any other questions?

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