BARBARA LYNN COMMANDER, APPELLANT,
v.
TIMOTHY RAY COMMANDER, APPELLEE

Fla. 1st DCA | 1986-09-03
No. BM-223
MILLS and WIGGINTON, JJ., concur.
493 So. 2d 530 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A former wife appeals the denial of her motion to specify overnight visitation rights with her three minor daughters at her residence, where she cohabits with an unmarried boyfriend. The court affirmed the trial court's denial, finding that overnight visitation in the cohabitation arrangement would not be in the children's best interests.


Holding

The trial court did not err in denying overnight visitation. The court may prohibit overnight visitation based on reasonably anticipated adverse effects on children from exposure to cohabitation arrangements, without requiring demonstration of actual harm. The trial court's determination that overnight visitation in the mother's cohabitation situation would not serve the children's best interests was not an abuse of discretion.


Headnotes

[1] A trial court may deny a motion for specification of overnight visitation rights when the requesting parent insists on visitation in their residence under circumstances d…

[2] The admission of evidence regarding a parent's failure to pay child support is harmless error if the trial court explicitly states it is not considering such evidence as…

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Key Quotes

“the courts have not reached the level of impotency in protecting and preserving the institutions of marriage and the family that they are powerless to prevent impressionable young children from being thrust into the middle of a cohabitation living arrangement, such as in the case at bar, which would tend to foster the development of a distorted view by such children of acceptable norms of family life in our society”

Establishes the court's position that trial courts retain authority to restrict visitation based on cohabitation arrangements to protect children's development

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Facts & Procedural History

After the parties' marriage was dissolved in March 1984, the mother received primary physical custody of three minor daughters (ages four, six, and ei…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

Appellant, the former wife, appeals from an order denying her “Motion To Specify Visitation Rights.” We affirm.

After dissolution of the parties’ marriage in March 1984, the appellant was given primary physical custody of the parties’ three minor daughters. In September 1984, appellee, the former husband, moved for a modification of custody. Appellant defaulted and appellee was awarded primary physical custody of the children. The order of modification granted the appellant “reasonable visitation.” In December 1985, the appellant moved for specification of visitation rights. Her motion was precipitated by the appellee’s resistance to permitting overnight visitation at the appellant’s place of residence.

At the hearing, it was shown that the appellant was living with a man out of wedlock and that she was carrying his child. She testified that they had no plans to marry. Appellant stated that the children would sleep in the bedroom and that she and her boyfriend would sleep on the living room sofa.

The appellee testified that he did not permit the children to visit at the appellant’s residence because he considered the appellant’s living arrangement detrimental to the children’s welfare, but that he would not object to visitation under other circumstances such as at the maternal grandmother’s home. However, the appellant insisted specifically upon the right to overnight visitation of the children in her residence.

The trial court denied the appellant’s motion, finding that the proposed overnight visitation demanded by appellant would not be in the children’s best interests because of her cohabitation with her boyfriend.

Appellant raises three issues, two of which merit only brief discussion. First, she argues that the lower court erred in denying the motion in its entirety without specifying any visitation rights. It is clear from the record that the appellant was specifically seeking overnight visitation and was not requesting specification of alternative visitation. The court properly denied the motion. The wife has not been denied other reasonable visitation.

Second, the appellant argues that the court erred in admitting evidence of her failure to pay child support. The judge stated at least twice during the hearing that he was not considering the failure to pay child support as a ground for denying the appellant’s motion. The error, if any, in admitting that evidence was harmless.

Finally, the appellant argues that the trial court erred in denying overnight visitation on the basis of her cohabitation with her boyfriend. This argument requires some discussion.

We believe the instant case is distinguishable from Walden v. Walden, 483 So. 2d 87 (Fla.1st DCA 1986). There, this Court dealt with an order of the trial court which changed custody from the mother to the father. In the instant case, the trial court has not modified custody of the child. Also, the Walden court pointed out that “the mother has managed to insulate the child from any knowledge” of the mother’s conduct. The opposite is true in the instant case.

Also, Dinkle v. Dinkle, 322 So. 2d 22 (Fla.1975), does not require reversal. There, the trial court, upon dissolution of the marriage, awarded custody of the parties’ minor child to the mother despite the mother’s adulterous relationship during the marriage with a fellow teacher. This Court reversed because of the demonstrated moral unfitness of the mother. Dinkle v. Dinkle, 305 So. 2d 90 (Fla.1st DCA 1974). The Supreme Court quashed this Court’s decision and reinstated the trial court’s award of custody to the mother. The Supreme Court reiterated the principles that it is the trial court’s function to determine what is in the best interests of the child and that an appellate court should not reverse the trial court’s findings absent a showing of abuse of discretion. The Supreme Court also observed that it might have reached a conclusion different from the trial court were it sitting as trier of the fact.

Likewise, under the circumstances of the instant case, we would be engaging in a prohibited substitution of our judgment for the trial court’s judgment were we to reverse. The trial judge was faced with a situation where the appellant insisted upon the right to place the three daughters — ages four, six and eight — in an overnight visitation situation in a residence where the appellant was cohabiting with a boyfriend, was pregnant by such boyfriend and was sleeping with him on a sofa in the living room while the children were present in the house. Contrary to what some may believe and contrary to what might be inferred from some of the case authorities, e.g. Hackley v. Hackley, 380 So. 2d 446 (Fla.5th DCA 1979), the courts have not reached the level of impotency in protecting and preserving the institutions of marriage and the family that they are powerless to prevent impressionable young children from being thrust into the middle of a cohabitation living arrangement, such as in the case at bar, which would tend to foster the development of a distorted view by such children of acceptable norms of family life in our society. See Brush v. Brush, 414 So. 2d 37 (Fla.3d DCA 1982) (“cohabitation of the custodial parent” held to be properly considered in the determination of a change of custody); Hackley, supra, at p. 448 (a “live-in arrangement” deemed a “negative factor” in the consideration of overnight visitation). See also Smothers v. Smothers, 281 So. 2d 359 (Fla.1973); Young v. Young, 305 So. 2d 92 (Fla.1st DCA 1974).

We have also considered the notion that the subject order may be vulnerable because there has been no evidence that the visitation demanded by the appellant has adversely affected the children. Presumably, of course, no such evidence exists simply because such visitation has not been permitted. In any event, we do not believe a court must wait until there is a demonstrable adverse affect upon a child, as one might conclude from a cursory reading of Hackley, supra, Walden, supra, and Nich ols v. Nichols, 491 So. 2d 617 (Fla.1st DCA 1986). Rather, we believe that a reasonably anticipated adverse effect on the child from exposure to a proposed situation or circumstance may be sufficient to support an order prohibiting such situation or circumstance. Beaman v. Beaman, 393 So. 2d 19 (Fla.3d DCA 1981) (“potentially damaging” situations). Even in Hadley v. Cox, 470 So. 2d 735 (Fla.5th DCA 1985), involving an unusual result wherein the Fifth District reversed the trial court’s denial of visitation at the mother’s nudist camp, the Fifth District nevertheless recognized the rule that “potential” harm, as opposed to actual harm, is all that is required to prohibit the situation. Id. at 737.

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.


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Citator

Cited By

  • Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996)
    …negative impact on the child is not enough. This is not to say that the trial court must have evidence of actual harm, past or present. The trial court can base a decision on proof of the likelihood of prospective harm. See, Commander v. Commander, 493 So. 2d 530 (Fla. 1st DCA), rev. denied, 501 So. 2d 1281 (Fla.1986). Although we find evidence of record other than the matters judicially noticed which might support the award of custody to Mr. Maradie, because of the emphasis the trial court expressly placed…
  • Wilson v. Donnie Kenneth Wilson, 504 So. 2d 1278 (Fla. 1st DCA 1986)
    …as been recognized as at least a factor for the trial court to consider in determining the best interests of the child. Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Hackley v. Hackley, 380 So. 2d 446 (Fla. 5th DCA 1979); Commander v. Commander, 493 So. 2d 530 (Fla. 1st DCA 1986). We have the additional evidence referred to above regarding the deterioration in the child’s emotional state coupled with the custodial parent’s apparent insensitivity thereto. Contrary to appellant’s assertions, there is suffi…
  • Adamson v. Chavis, 672 So. 2d 624 (Fla. 1st DCA 1996)
    …of the child. § 61.13(2)(b)l, Fla.Stat. (1995); Pridgeon v. Pridgeon, 632 So. 2d 257 (Fla. 1st DCA 1994). Not infrequently, trial courts are called upon to predict the effects upon a child of exposure to proposed conditions. Commander v. Commander, 493 So. 2d 530 (Fla. 1st DCA), review denied, 501 So. 2d 1281 (Fla.1986). It seems to me that is precisely what occurred here. The trial court concluded that the likely effects of permitting the visitation requested by the father would not be in the best interest…

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