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.
In this child custody and visitation case, because of the father’s proven history of substance abuse, the Florida Court of Appeal ordered the father to completely abstain from alcohol, and required him to submit to blood alcohol content testing before and after each visitation. The Court overruled the trial court’s requirement that the Father submit to periodic testing at the mother’s request. Finally, the Court apportioned the costs associated with the substance abuse testing device between the parties.