Law - best interests of the child
LEXSEE 676 SO. 2D 493
ELIJAH WILLIAMS, Appellant, v. DELORIS WILLIAMS, Appellee.
CASE No. 95-799
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
676 So. 2d 493; 1996 Fla. App. LEXIS 6839; 21 Fla. L. Weekly
June 28, 1996, Filed
SUBSEQUENT HISTORY: [**1] Released for Publication July 17,
PRIOR HISTORY: Appeal from the Circuit Court for Brevard County,
Charles M. Holcomb, Judge.
LexisNexis (TM) HEADNOTES - Core Concepts:
COUNSEL: Teresa Byrd Morgan, of Darby, Peele, Bowdoin &
Payne, Lake City, for Appellant.
Barbara T. Taylor, Cocoa Beach, for Appellee.
JUDGES: GRIFFIN, J., SHARP, W., J., concurs. PETERSON, C.J.,
dissents, with opinion.
OPINION BY: GRIFFIN
OPINION: [*494] GRIFFIN, J.
Elijah Williams, the former husband and custodial
parent, appeals an order transferring custody of his nine-year-old
son to Deloris Williams, the former wife and mother of the
The parties' 1977 marriage was dissolved in
1987. Two children were born of the marriage, a daughter,
Tiffany, in 1984 and a son, Terrell, in 1986. The settlement
agreement, incorporated in the final judgment of dissolution,
granted sole parental responsibility and primary residential
custody of both children to Elijah.
In 1989, Elijah moved with the children from
Brevard County, Florida, to Thomasville, Georgia. In 1993,
he sought an increase in child support. In a counter-petition
Deloris sought custody of the children. Those actions culminated
in an order transferring primary physical [**2] residence
of the daughter to Deloris. The trial court noted that Elijah
had frustrated visitation, had not kept Deloris apprised of
the children's problems and had disparaged Deloris in the
children's presence. The court also noted that Tiffany was
displaying some unusual behaviour which provided additional
support for its conclusion that custody of Tiffany should
be changed to Deloris.
In 1994, Deloris filed a modification petition
in which she sought custody of Terrell. She alleged that it
was no longer in the best interests of the children to be
separated from each other and that their best interests required
that both Tiffany and Terrell be in her primary custody. Deloris
also alleged that Elijah had "continually and increasingly
interfered with [her] communication and visitation with her
son." Elijah countered by seeking a transfer of custody
of Tiffany back to him.
[*495] During the hearing on the petitions,
the trial court heard evidence of Elijah's ongoing frustration
of visitation attempts made by Deloris. The lower court cogently
found as expressed in its order:
1. The Father, Elijah Williams, has wilfully
refused to honour the Mother's visitation rights with Elijah
[**3] Terrell Williams, without just cause. See Section 61.13(4)
(c) (2), Florida Statutes. He caused her to drive four hours
one way on several occasions only to deny her visitation upon
2. That it is in the best interest of Elijah
Terrell Williams to reside with his Mother, Deloris Williams.
Section 61.13(4)(c)(2), Florida Statutes (1995)
(c) When a custodial parent refuses to honour a non-custodial
parent's visitation rights without proper cause, the court
2. Award the custody or primary residence to the non-custodial
parent, upon the request of the non-custodial parent, if the
award is in the best interests of the child.
Elijah urges on appeal that the lower court
granted the change in custody solely because of the frustration
of visitation and relies on cases to the effect that frustration
of visitation alone will not support a change of custody.
The record clearly shows, however, that the "best interests"
issue was argued to the lower court and that the court was
well informed as to the controlling test for a change of custody.
n1 Elijah also seems to want to argue that a
material change in circumstances is also required. The statute
does not require the moving party to establish a "substantial
change of circumstances." We conclude that when a non-custodial
parent proceeds under section 61.13(4)(c), no substantial
change of circumstances is necessary to be proven where a
violation of visitation rights is found by the court to have
occurred and the court further finds that the best interests
of the child lie in transferring custody to the other spouse.
Additionally, it seems to us that "a substantial change
of circumstances," in fact, is created by the custodial
parent's establishment of a continuing and persistent pattern
of obstructing the visitation rights of the non-custodial
Section 61.13(3) provides a non-inclusive list
of factors which the court is required to evaluate in determining
shared parental responsibility, primary residence, and the
best interests of the child:
(a) the parent who is more likely to allow the
child frequent and continuing contact with the non-residential
(b) the love, affection, and other emotional
ties existing between the parents and the child.
c) the capacity and disposition of the parents
to provide the child with food, clothing, medical care . .
(d) the length of time the child has lived in
a stable, satisfactory environment and the desirability of
(e) the permanence, as a family unit, of the
existing or proposed custodial home.
(f) the moral fitness of the parents.
(g) the mental and physical health of the parents.
(h) the home, school and community record of
(i) the reasonable preference of the child if
the court deems the child to be of sufficient intelligence,
understanding and experience to express a preference.
(j) the willingness and ability of [**5] each
parent to facilitate and encourage a close and continuing
parent/child relationship between the child and the other
(k) any other fact considered by the court to
In the instant case, there is ample evidence
that factors (a) and (j) support the lower court's best interests
finding in favour of Terrell's residing with Deloris rather
than Elijah. Elijah urges, however, that the lower court could
not change custody because Deloris did not offer evidence
on the other statutory factors. We disagree and conclude there
is enough evidence in the record consistent with section 61.13
to support the lower court's best interests finding.
The dissent recites evidence favourable to Elijah's
parenting to counter the lower court's express "best
interests" finding. The lower court was not required
to believe this evidence or to give it the same weight as
the dissent gives it, however. The issue is whether the record
contains evidence to support the court's conclusion that the
custody change was in the child's best interest.
[*496] The record shows that after the previous
modification hearing, resulting in Deloris receiving custody
of their daughter, Tiffany, Elijah immediately took his son
out of the school he had been attending. The child was out
of school for a week while Elijah found another school --
which is described as "alternative" schooling for
grades kindergarten through six, consisting of forty-five
students in one room with three teachers and which is unaccredited.
Elijah was apparently upset with the first school because
he felt Tiffany's teacher had "lied" during the
modification trial. He did not tell Deloris about this change
in Terrell's school and, when she inquired, told her it was
"none of her business." The child's grades at his
former school had deteriorated to mostly D's and F's. The
school he is in now doesn't give grades, only a check mark
to indicate pass/fail. His progress reports at the new school
indicate that he needs to practice more self-discipline and
be aware of other children's feelings. n3 It appears that
Elijah had not troubled to participate in an interview or
conference with the child's teacher at his new school in order
to obtain his most recent progress report. Since [**7] September
1993, Elijah has given Deloris no reports or records concerning
her son's performance or progress. The record also indicates
that Tiffany is doing well. There is evidence that Deloris
is an excellent mother and that when Terrell is at his mother's,
he seems happy with his sister.
n3 There was also substantial evidence offered
by Elijah that Terrell was doing well in school and was a
happy boy, which makes this a question of credibility or a
weighing of the various factors which is the province of the
The record is further undisputed that on at
least two occasions, when Deloris drove in excess of 500 miles
to Georgia to exercise visitation, she was told that either
the child was not available or no one was home. She subsequently
learned that the child was, in fact, home when she was turned
away by Elijah.
The record also indicates that the 1993 custody
order pursuant to which the lower court had changed custody
only of Tiffany to the mother, rather than both children,
was predicated upon [**8] assurances from Elijah that there
would be no visitation problems. This manifestly turned out
not to be the case.
In order to establish the best interests of
the child under these circumstances, it is not necessary for
a parent to succeed by the greater weight of the evidence
on each of the various statutory sub-factors relating to custody.
In this case, there was a lot of evidence on two factors and
some evidence relating to most of the factors. Even aspects
of the mental and physical health of the parents were observable,
if not proved by expert testimony. In almost every case, some
of these statutory factors may be positive, some factors may
be neutral and some factors may be negative. As in this case,
there may not be a lot of evidence on all the factors -- in
cases such as this, evidence is not easy to come by -- but
there certainly is plenty of evidence on several of the relevant
factors from which the lower court could have properly concluded
that it was in this child's best interest to reside with his
mother and sister in the home environment they have created.
Deloris proved that the father is making dubious parenting
decisions, that he is not communicating with her about [**9]
the child, and that leaving the child with Elijah will clearly
deprive the child of access to a loving, competent mother
and to his sister, with whom the evidence shows he had an
excellent relationship and in whose company he was very happy.
The court does not require expert testimony to determine that
this state of affairs is not in the child's best interests;
it can make this determination based on its own observation
and common sense. Here, the trial court heard ample testimony
multiple times of both Elijah Williams and Deloris Williams.
In the face of the negative facts about Elijah's parenting
and isolation of the child from his mother and sister, Elijah
offered nothing positive. There is simply no basis to second
guess the trial judge under facts such as these.
SHARP, [*497] W., J., concurs.
PETERSON, C.J., dissents, with opinion.
DISSENT BY: PETERSON
DISSENT: PETERSON, C.J., dissenting
I do not disagree with the majority that competent substantial
evidence exists in the record to support the trial court's
finding that Elijah frustrated efforts by Deloris to exercise
her right of visitation. If frustration of visitation was
the sole statutory criteria under section [**10] 61.13(4)
(c) (2), I would agree with the majority's affirmance.
But the overall objective under the statute
is to determine the best interest of the child, Terrell. It
is here that I part company with the majority. My review indicates
that the evidence is lacking to meet this test. The majority
excuses this by stating that evidence in cases like this is
not easy to come by.
I conclude that Elijah lost custody in this
case because he frustrated visitation, and Terrell's sister,
Tiffany, wanted to reside with her brother. Noticeably absent
from the testimony is any input by nine-year-old Terrell,
as to his desires in the matter, one of the criteria under
section 61.13(3)(i). Aside from demonstrating Elijah's poor
cooperation in the matter of visitation, Deloris tried to
show that Elijah made a poor choice in the matter of selecting
Terrell's school. The majority points out that Terrell's grades
had deteriorated at the former school. Terrell complained
to his father about the former school and that he was not
being treated fairly because the students were predominately
of a different race. Elijah's choice of an alternate school,
to deal with his son's complaint, exhibits a father's [**11]
concern. Terrell's present teacher, a veteran educator, reported
that she has a good relationship with the boy and that he
appears happy and well-adjusted. She praised Elijah for his
parental involvement and his attendance at workshops and seminars.
The fact that a report from the school indicates that Terrell
needs to practice more self discipline and be aware of other
children's feelings is a credit to the faculty's awareness
of matters to which attention must be devoted. The majority's
observation that this school has a low student-teacher ratio
of 15-1 should be a plus.
It should also be noted that Elijah's work and
Terrell's school are both in Tallahassee, Florida, although
their home is in Thomasville, Georgia. Elijah and Terrell
spend time with each other as Elijah drives his son to school
There was ample evidence of a commodious home
in Thomasville and Elijah's attention to clothing and nutrition
for his son. Elijah's sister resides next door and other family
members live hear by. Noticeably absent was any testimony
about the features of his new home with Deloris and the schooling
that will be furnished there. We do know that Tiffany was
forced to attend a public [**12] school after doing so well
in a private school when Deloris, through inadvertence or
pre-design, failed to timely re-enrol her daughter before
the classes were filled.
The party seeking to change a custody order
carries an extraordinary burden. McGregor v. McGregor, 418
So. 2d 1073 (Fla. 5th DCA 1982). This is particularly true
where, as here, the party now seeking custody, Deloris, agreed
by way of a settlement incorporated in the final judgment
that custody of the children would be with the father. Jablon
v. Jablon, 579 So. 2d 902 (Fla. 2d DCA 1991). My evaluation
indicates that Deloris failed to carry even an ordinary burden
in this matter.
I would reverse and continue primary residential
custody of Terrell with Elijah with whom he has resided from
the time he was a year old and remand to the trial court to
fashion a visitation plan that adequately compensates Deloris
for her frustration and expenses incurred in attempting to
exercise her rights of visitation.