Opinion
No. 2D03-5155.
April 8, 2005. Rehearing Denied May 16, 2005.
Appeal from the Circuit Court for Hillsborough County; Monica L. Sierra, Judge.
Ellen E. Ware of Ellen E. Ware, P.A., Tampa, for Appellant.
Jeffrey A. Blau, Tampa, for Appellee.
In this appeal of the final judgment of paternity, the Father, Peter Ferri, argues that the trial court abused its discretion in awarding primary residential responsibility of the parties' child to the Mother, Holly Apple. We disagree and affirm.
It is well settled that a trial court has broad discretion in child custody matters, and its decision in that regard is reviewed for an abuse of discretion. Where reasonable persons could differ as to the trial court's ruling, there is no abuse of discretion. "Despite a conflict in the evidence, an appellate court will not disturb a trial court's custody decision unless there is no substantial competent evidence to support that decision."
Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003) (citations omitted) (quoting Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998)).
While this is a close case, there is substantial competent evidence to support the ruling of the trial court, which had the advantage of personal observation of the witnesses at the hearing.
We note that the Mother's counsel acknowledged that the final judgment provides that when the child turns four years of age on July 20, 2005, the Father's child support obligation will cease because the child will then be spending forty-seven percent of her overnights with him according to the judgment.
Affirmed.
KELLY, J., Concurs.
CASANUEVA, Judge, Concurs with opinion.
Although I concur in the court's decision to affirm the award to the Mother of primary residential responsibility for the parties' child, I write to discuss two matters.
First, the record strongly suggests that the testimony of the appointed child custody evaluator, a psychologist, was important. Yet, in the seven-page final judgment, the trial court fails to mention that it considered and evaluated this testimony. As the trier of fact in a nonjury proceeding, the trial court is not bound to follow an expert's recommendation; however, it is bound to consider the testimony. To facilitate appellate review, as well as to avoid a contention that the custody decision was arbitrary, I would suggest that trial courts indicate, at a minimum, that they considered and evaluated the expert testimony in the decisionmaking process.
My second concern involves the child's visitation with the noncustodial parent. Often, the best predictor of future behavior is past conduct, and the record and the final judgment both indicate that the custodial parent has interfered with visitation in the past. The final judgment provides for the Father, as noncustodial parent, to receive future visitation for approximately forty-seven percent of the year. Without a specific schedule, which the trial court may yet be required to impose, visitation may be disrupted; nevertheless, I am optimistic that the parties can insure that the process works smoothly in the best interest of their child. I am also confident that both parties have been advised by their attorneys that the court possesses statutory authority to guarantee that visitation occurs in accordance with the court's order, including modification of primary residence and custody pursuant to section 61.13(4)(c)(5), Florida Statutes (2004), when the custodial parent interferes with the noncustodial parent's visitation rights.