Posted by Nydia Streets of Streets Law in Florida Child Custody
How does a parent’s substance abuse issue affect a Florida child custody case? Since the establishment of a parenting plan needs to be based on the best interest of the children, if the substance abuse affects a parent’s ability to care for the children, this is a factor the court will consider in determining time-sharing and parental responsibility. We see this play out in the case Frye v. Cuomo, 4D19-1417 (Fla. 4th DCA June 3, 2020).
The parties were married for nine years and had two children by the time a petition for divorce was filed. The former wife alleged the former husband had a drinking problem and requested the he have supervised visits with her being granted ultimate decision-making authority. The former husband countered with a request for unsupervised visits and shared parental responsibility. Evidence was presented at trial of the former husband’s history of alcohol abuse, and a psychologist who performed a substance abuse evaluation recommended that the former husband completely abstain from alcohol due to his history of relapse and dependence on alcohol. A guardian ad litem testified that the former husband was involved in the children’s school and extracurricular activities despite his substance abuse issue.
The trial court ultimately awarded the former husband unsupervised visits, ordering that he completely abstain from alcohol and that he submit to blood alcohol content (BAC) testing at the beginning and end of each of his visits with the children. The former wife was awarded the authority to request random BAC tests from the former husband, even when he was not exercising time-sharing. The court ordered the former husband would be responsible for this cost. Finally, the former wife was awarded ultimate decision-making authority regarding the children’s education. The former husband appealed.
The appellate court found that given the former husband’s history of alcohol abuse, it was reasonable for the trial court to require BAC testing at the beginning and end of his time-sharing periods, and for him to be ordered to completely abstain from alcohol. However, the court found it was not reasonable to allow the former wife to request periodic testing at her discretion, holding “It was error, however, for the trial court to grant Former Wife unfettered discretion in requesting BAC testing from Former Husband at any time as this restriction was neither within the parameters of reasonableness nor necessary to protect the welfare of the children.” As to the cost for testing, the appellate court found it was error to make the former husband fully responsible, holding “Moreover, because the final judgment explicitly conditions Former Husband’s time-sharing on BAC testing, it was also error for the trial court to make him solely responsible for the cost of the BAC device.[. . .] On remand, the trial court shall treat the cost of the BAC device as part of the child support obligations.”
Turning finally to the issue of decision-making, the court reversed the award of ultimate decision making to the former wife on education, holding “Here, the record does not support the trial court’s finding that it is in the best interests of the children to give Former Wife ultimate decision-making authority regarding education. To the contrary, the record reflects that Former Husband is actively involved in the children’s education and school activities.”
Substance abuse is a serious issue which should be addressed in a Florida child custody case. If you need help in determining the best way to proceed if this is an issue in your case, contact a Miami child custody lawyer for guidance.