Start With Clear Information

When a loved one’s drinking or drug use puts a child at risk, the Marchman Act effect on custody in Florida is often the first question on your mind. It runs separately from a custody case, though facts from one can come up in the other.

This page explains how the two can overlap, what a court looks at, and which questions to bring to a lawyer. It is general information for a family still deciding what to do next.

What a Marchman Act Order Is

A Marchman Act order can require a person to be assessed and, when the legal criteria are met, treated for substance use impairment. The Florida Department of Children and Families says the Act allows involuntary assessment, stabilization and treatment for adults and youth severely impaired by substance abuse.

Family members can start the process. Under § 397.68112, an adult’s spouse or legal guardian, any relative, a service provider, or an adult with direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment may file a petition. Law enforcement has a separate route. Under § 397.677, an officer may use protective custody when a person who appears to meet the criteria is brought to the officer’s attention or is in a public place.

If the court finds the conditions proved by clear and convincing evidence, it may order treatment for a period not to exceed 90 days. That rule comes from § 397.697. Robinson Casey focuses on Marchman Act petitions and guardianship matters, serving families across South Florida and statewide.

The Criteria a Court Looks At

A court needs a good-faith reason to believe the person is substance abuse impaired or has a substance use disorder and a co-occurring mental health disorder, and that because of this the person has lost the power of self-control with respect to substance abuse and meets one of further tests, such as needing services while lacking the judgment to recognize that need, or being likely to neglect themselves in a way that poses a real and present threat of substantial harm, or being substantially likely to inflict physical harm on themselves or another. The current text of § 397.675 sets out those criteria.

The person must have lost the power of self-control with respect to substance abuse. One of two other things must also be true. Either the person needs services and cannot see that need or make a rational decision about it. Or, without care, the person is likely to neglect themselves or refuse to care for themselves in a way that poses a real and present threat of substantial harm, and it is not apparent that such harm may be avoided through the help of willing, able, and responsible family members or friends or other services. A substantial likelihood of physical harm to self or another also meets the test. A bare refusal of help does not, by itself, prove that judgment is impaired.

The petition must explain the reasons. Under § 397.68141, it must name the respondent and the petitioner, state their relationship, and give the facts behind the petitioner’s belief. It may include an assessment by a qualified professional done within 30 days before filing. If no assessment was done, the petition must say so.

Fifth District decisions add a procedural rule. In C.W.R.K. v. Stewart Marchman Act Behavioral Healthcare, the court held that the trial court erred when, with the petitioner absent, it called and questioned the professional who signed the certificate. A Fourth District panel reached a different result in J.J.J. v. D.G. and certified a conflict. In J.J.J. v. D.G., No. 4D2023-2185 (Fla. 4th DCA July 24, 2024), the court wrote: “we certify conflict with R.S., J.W., and C.W.R.K., for the reasons stated above. Affirmed; conflict certified.” Treat this as Fifth District law, not a settled statewide rule.

How a Marchman Act Petition Differs From Other Court Cases

A Marchman Act case is its own proceeding, even when the same people appear in both. It asks whether the statutory criteria for assessment or treatment are met. A family-court custody case asks how a child’s parenting time and decisions should be arranged.

The overlap is practical. The same parent or caregiver may be part of both, and what happens in one can bear on the other. Whether a Marchman Act case affects a custody matter depends on the facts, including whether a custody case is already open.

The Florida judicial parenting guide says a parent’s drug or alcohol abuse, and related safety concerns, may require changes to ordinary parenting-time arrangements. The guide is not law. It does not set Marchman Act procedures or custody outcomes, so read it as context.

How a Parent’s Substance Use Can Come Into a Custody Discussion

A parent’s substance use can matter in a custody discussion when it raises safety concerns for a child. Those concerns come up through evidence, so the facts you can document carry weight.

In a Marchman Act hearing, the court must hear and review all relevant evidence. Under § 397.6957, that can include testimony from family members who know the person’s prior history. The court may also order drug tests. Testimony is taken under oath, and the respondent may refuse to testify.

If a parent seeks involuntary admission of a minor, that parent must take part in all aspects of treatment the licensed provider’s director considers appropriate. § 397.6759 sets out that duty. Because the court hears all relevant evidence, a complete, dated account of the facts is worth preparing.

Effects on Your Loved One’s Daily Life

A Marchman Act order can mean time away from work. The job effects turn on the employer, the job and the order itself. Federal leave rules are one place to start.

Under 29 C.F.R. § 825.119, substance abuse may be a serious health condition if certain FMLA conditions are met, and FMLA leave may then be taken for treatment, but only when a health care provider gives the treatment or refers the person to it. An employee may also take FMLA leave to care for a covered family member who is getting treatment. Absence because of the substance use itself, rather than for treatment, does not qualify.

The same rule says treatment does not by itself stop an employer from acting under an established policy, but the employer may not take action against the employee because the employee took FMLA leave for treatment. That policy must be applied in a non-discriminatory way and communicated to all employees. So leave questions and employer policy both matter.

Court records in these cases are confidential. Under § 397.6760, petitions, orders and related records are confidential, and the clerk may not publish personal identifying information on a court docket or in a publicly accessible file. Bring these questions to a lawyer early: the timing of hearings, the treatment schedule, what the employer has been told, and whether leave applies.

What Families Can Do Now

Start by writing down dated, specific facts about the impairment and any effect on a child in the home. Courts hear all relevant evidence, so concrete notes are more useful than general worry.

Next, know what a petition needs. Under § 397.68141, the petition must state the factual reasons behind the petitioner’s belief. Keep every court paper, notice and treatment document in one folder.

Filing location matters. A petition goes to the clerk in the county where the person is located, and the clerk may not charge a filing fee under § 397.681. In J.P. v. J.N., the Fifth District held that filing in the wrong county was a venue defect, not a loss of jurisdiction. In J.P. v. J.N., the court held that filing the petition in the wrong county did not divest the circuit court in Putnam County of jurisdiction.

The person named as respondent has a right to counsel at every stage, but the respondent may waive that right if the respondent is present and the court finds that such waiver is made knowingly, intelligently, and voluntarily. A respondent who cannot afford private counsel may receive court-appointed counsel. In Hillsborough County v. Albrechta, the Second District held that due process gives a Marchman respondent a constitutional right to counsel.

Key Takeaways

• The court needs a good-faith reason to believe the criteria are met, and the petition must state the facts.
• Custody overlap is fact-specific. A parent’s substance use can matter when it raises safety concerns.
• Job and leave questions are worth raising early, because federal leave rules and employer policy both apply.

Frequently Asked Questions

Talk With Robinson Casey About Your Family’s Situation

If a loved one’s substance use has put a child in your home at risk, and custody and work questions are weighing on you, you don’t have to sort them out alone. Call (561) 849-4700 or use the contact page to set up a free, confidential first consultation, with no obligation to continue.

Richard J. Casey III, Esq., is the lawyer responsible for this page.