Palm Beach Florida Divorce & Family Law Blog

A child custody and visitation case was recently decided by the Florida Court of Appeal in a case captioned Frye v. Cuomo. In this case, the parties were married for nine-years. They had two minor children at the time of the divorce. The mother filed a Petition for Dissolution of Marriage, citing the father's history of alcohol abuse. As a condition to exercise timesharing, the trial court required the father to completely abstain from alcohol, and ordered the father to submit to blood alcohol testing at the beginning of every visitation and at the end of every visitation. The lower court also awarded the mother the authority to demand immediate and periodic testing of the father at any time, and required the Father to pay for the cost of the testing device.

In reaching its decision, the Florida Court of Appeal pointed out that restrictions on timesharing are usually disfavored, unless they are necessary to protect the children. Parents have a constitutionally protected right to have a meaningful relationship with their children. Custody and visitation should not be denied to either parent as long as they conduct themselves in a manner that does not adversely affect the children when they are in the presence of the children. Restrictions on custody and visitation must be in the best interests of the children before they will be upheld on appeal.

A child relocation case was recently decided by the Florida Court of Appeal in a case captioned C.G. v. MM. In this case, the mother appealed the trial court's decision concerning custody and visitation. The parents were unmarried and separated in 2010. They had one child. The parties did not enter into a formal parenting plan, however, they divided their timesharing equally. Eventually, the mother entered into a new relationship and had a second child with her boyfriend. The mother lived in Pinellas County. She decided that she was going to move to Hillsborough County at some time in the future.

At trial, the judge awarded the father majority timesharing and granted the parents shared parental responsibility. The trial court also ruled that when the mother moves to Hillsborough County, during the school year, the child was to spend more timesharing with the father. The mother received timesharing every other weekend, and the parties were to equally divide the holidays. The ruling was based upon the mother's anticipated move to Hillsborough County.

The Florida Statues set forth the procedure to relocate a child. Unless the parties can agree to the relocation, the parent desiring to relocate must file a Supplemental Petition for Relocation. The parent desiring the relocation bears the burden of proof, by a preponderance of the evidence, that the relocation is in the child's best interest. Once that burden of proof is met, the burden of proof shifts to the objecting parent to demonstrate that the relocation is not in the best interest of the child. 

A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Rhoden v. Rhoden. In this case the husband filed a Petition for Dissolution of a thirty-five year marriage. The husband denied that wife required alimony, and denied that he was able to pay it. The Court stated that the wife had several illnesses, and probably would not have been employable if she had not worked for her husband. The Florida Statutes enable trial courts to award several different types of alimony. In awarding alimony, a court must first find that one party has a need for support and that the other party has the ability to pay. Once the court makes this initial determination, the Court is required to consider other factors set forth in the Florida Statutes. In this case, the trial court awarded the wife durational alimony.

A Child Custody and Visitation case involving a child's custody preference was recently decided by the Florida Court of Appeal. In a case captioned Talarico v. Talarico, the mother and father had two children. The parties divorced and negotiated parenting plans. Several years later, the father sought a modification of child custody and visitation, which the trial court granted. The Florida Court of Appeals reversed the trial court's decision.

The Florida Court of Appeal stated that in order to grant a modification of child custody, the moving party must prove that a material, substantial and unanticipated change of circumstances occurred which warrants the modification. This change of circumstances must adversely affect the children's welfare. One of the factors that the trial court is permitted to consider in reaching a custody decision is a child's reasonable preference. In order to consider a child's custody preference, the trial court must find that the child has sufficient experience, understanding and intelligence to express a preference. The Court of Appeal stated that trial courts ordinarily do not desire to have children testify in court against one of their parents. In the event that a trial court decides to permit such testimony, the preferred method to obtain such testimony is by an interview conducted by the trial judge outside of the presence of the parents. These interviews are either recorded (unless otherwise agreed to by the parties), or the judge provides a summary of the interviews.