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Can a Judge Order Me to Pass a Breathalyzer Test Before Visiting My Kids?


In the context of child custody, a parent always retains a basic right to have a meaningful relationship with their children. So as a general rule, a Florida judge will not outright deny a non-custodial parent visitation rights. But the court may impose certain conditions or restrictions on visitation in order to protect the children’s “best interests.”

But how far can such restrictions go? A recent decision from the Florida Fourth District Court of Appeals, Frye v. Cuomo, offers some insight into this subject. This case involves two parents who divorced after nine years of marriage. During divorce proceedings, the mother cited the father’s alcohol addiction as a significant factor in the breakup of the marriage. The mother therefore sought custody, with only limited visitation rights for the father.

The trial court ultimately decided the father should have unsupervised visitation rights with the children, provided he “abstain completely from all alcohol use at all times.” To ensure compliance, the judge also ordered the husband to submit to blood-alcohol content (BAC) testing at the beginning and end of his visitation periods with the children. Furthermore, the mother would be permitted to require the father to undergo additional BAC testing outside of visitation periods.

The Fourth District disagreed with this last requirement, noting that it was “neither within the parameters of reasonableness nor necessary to protect the welfare of the children.” The appeals court therefore reversed that part of the trial court’s divorce judgment. However, the father will still need to undergo BAC testing before and after his actual visits with his children.

The appeals court also reversed the trial court’s instruction that the father “solely responsible for the cost” of the BAC testing device. This was inappropriate since, as the testing was a mandatory condition of his visitation, any costs should be treated as part of the father’s overall child support obligations.

Separately, the Fourth District said the trial court erred in granting the mother sole “ultimate decision-making authority” with respect to the children’s education. Although judges have the discretion to make such orders, they must still be supported by findings that granting one parent final say is in the children’s best interests. Here, the appeals court said there were no such findings–and, in fact, the evidence showed the father was “actively involved in the children’s education and school activities.”

Speak with a Florida Child Custody Lawyer Today

In any divorce, the goal of both parents and the court should be the same–to protect the best interests of the children. Obviously, there are often disagreements over what this actually means. As a parent, you have a right to advocate for both your interests and those of your children. An experienced Boca Raton divorce attorney can help. If you need legal advice or representation in connection with any divorce matter, contact WiseLieberman, PLLC, today at 561-488-7788 to schedule a consultation with a member of our family law team.




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