Posted by Nydia Streets of Streets Law in Florida Child Custody
Will a parent’s drinking problem affect his or her time-sharing in a Florida child custody case? Florida Statute 61.13 authorizes a court to consider “the demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse” when creating a parenting plan. Therefore, yes, a drinking problem will likely have an effect on the outcome of the case. This was an issue in Gugliemi v. Gugliemi, 1D19-1578 (Fla. 1st DCA July 6, 2021).
The parties were divorced in 2018. At that time, the court found the former wife had a “notable drinking problem”. Nonetheless, she and the former husband were awarded equal time-sharing with the parties’ children with conditions placed on the former wife’s time-sharing. She was ordered to abstain from alcohol consumption during her time-sharing with the children, and for the 12 hours preceding the start of her time-sharing period. Additionally, she was ordered to enroll in an alcohol monitoring program, to pay for the device associated with the same and to comply with random testing for the subsequent three months.
Approximately six weeks later, the parties returned to court and it was reported that the former wife had not enrolled in the alcohol monitoring program despite continuing to have time-sharing with the children. The court ultimately, after a hearing, temporarily modified the conditions of alcohol testing but did not alter the time-sharing schedule. Former wife was ordered to have only supervised time-sharing until she ultimately complied with the terms of the final judgment. The former wife did not appeal this order. Instead, she waited about 60 days to file a motion to vacate the order on grounds that her due process rights were violated, that the judge was biased and that the order was an improper modification of the parenting plan. The trial court denied the motion to vacate and the former wife appealed.
The appellate court began “Critical to our disposition is the fact that the temporary modification order here is not a final order. The characterization of an order on review as final or non-final has jurisdictional consequences. A district court has jurisdiction to review all final orders, but it has jurisdiction to review only those non-final orders as provided by rule. [. . . ] For an order to be considered ‘final,’ it must mark the end of the court’s work in the case. [internal citations omitted]. The trial court rendered the modification order in question here after the final dissolution judgment. It did so as an enforcement measure, to bring the former wife into compliance with the original enrollment and testing requirements of that final order. The order does not make permanent changes, particularly not to the terms of the former wife’s time-sharing.” The court ultimately concluded “In the absence of a rule allowing for it, we have no jurisdiction to review an order denying a motion to vacate addressed to a nonfinal order.”
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