Bache v. Bashir

• Decision Date: 05 February 1986
• Docket Number: No. 85-1830,85-1830
• Citation: Bache v. Bashir, 482 So.2d 546, 11 Fla. L. Weekly 345 (Fla. App. 1986)
• Parties: 11 Fla. L. Weekly 345 Nilsa BACHE, Appellant, v. Saeed BASHIR, Appellee.
• Court: Florida District Court of Appeals

Page 546

482 So.2d 546

11 Fla. L. Weekly 345

Nilsa BACHE, Appellant, v. Saeed BASHIR, Appellee.

No. 85-1830.

District Court of Appeal of Florida Fourth District.

Feb. 5, 1986.

Rehearing Denied Feb. 26, 1986.

Roy L. Taylor, Miami, for appellant.

Norman D. Zimmerman of Zimmerman & Zimmerman, P.A., Pompano Beach, for appellee.

HERSEY, Chief Judge.

In this child custody case arising out of a 1979 dissolution of marriage proceeding, the former wife sought custody of the parties' eight-year-old son and nine-year-old daughter. The daughter lives with the wife; the son is with his paternal grandmother, a very elderly lady, in Pakistan. Both the husband and wife reside in Broward County, Florida. In response to the wife's petition, the husband sought to have custody of the son awarded to the child's paternal grandmother. The trial court awarded custody of the daughter to the wife and custody of the son to the husband, and further provided that the husband had no obligation to return the son to the United States. In addition, the court awarded child support to the wife but refused to hold the husband in contempt for failing to make child support payments from the date of dissolution. We affirm this latter aspect of the order being appealed by the wife, but reverse the award of custody of the son to the husband.

The trial court was bound to make a determination as to custody based primarily upon the best interests of the child. § 61.13(2)(b)1, Fla.Stat. (1983). Various factors enter into that determination, some of which merit discussion here.

First, section 61.13(3)(j), Florida Statutes (1983), provides that in addition to certain specific factors to be considered by the trial judge in determining custody and primary physical residence, the court should consider "[a]ny other factor considered by the court to be relevant to a particular child custody dispute." In this regard the trial judge should have considered the relevant factor of the husband's lack of interest in having custody of the child as strongly militating against an award of custody to him. At no time did the husband seek custody of either child for himself.

Second, as the wife points out, although the trial court technically granted custody to the husband, since it did not require him to return the child to this country and he has indicated that he has no intention of doing so, the practical effect of the trial judge's order is to grant custody to the husband's mother in Pakistan.

The State of Florida recognizes that "a parent has a natural right to enjoy the custody, fellowship and companionship of his offspring." In re Guardianship of D.A. McW., 429 So.2d 699, 702 (Fla. 4th DCA 1983), aff'd, 460 So.2d 368 (Fla.1984). Although in a contest between two fit parents the controlling test is the best interests of the child, in a contest between a natural parent and someone else, the rights of the parent must also be considered. 429 So.2d at 702. In applying the above rule, this court has held that "custody cannot be denied to a natural parent absent some disability on his part." Id. See also State ex rel. Sparks v. Reeves, 97 So.2d 18 (Fla.1957); Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984). "[E]xcept in cases of clear, convincing and compelling reasons to the contrary, a child's welfare is presumed to be best served by care and custody by the natural parent." Behn v. Timmons, 345 So.2d 388, 389 (Fla. 1st DCA 1977).

It is a strong public policy of this state "to assure each minor child frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of child rearing." § 61.13(2)(b)1, Fla.Stat. (1983). In those rare cases where custody has been awarded to a grandparent vis-a-vis a fit parent, the circumstances have been such that the distances separating the parent and child would not be so great as to deny the parent the opportunity for a continuing relationship with the child. For example, see Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980), overruled in part, In re Guardianship of D.A. McW., 460 So.2d 368 (Fla.1984); Brannan v. Brannan, 284 So.2d 701 (Fla. 1st DCA 1973). In the instant case, the effect of the trial court's order is that the child will continue throughout his minority to live thousands of miles from his father, mother, and sister, with little or no opportunity to have contact with them. Thus the trial court's order is directly contrary to the state's public policy.

Another of the factors to be considered by the trial court in determining the primary physical residence of the child is which parent is "more likely to allow the child frequent and continuing contact with the nonresidential parent." § 61.13(3)(a), Fla.Stat. (1983). As a general rule, a parent who conducts herself properly in the children's presence should have the privilege of visiting her children, and removal of the children out of the state or the country, which renders the right of visitation a nullity, is thus disfavored. See Yandell v. Yandell, 39 So.2d 554 (Fla.1949); McManus v. McManus, 238 So.2d 473 (Fla. 2d DCA 1970).

In the instant case, permitting the husband to keep the child in Pakistan will result in the wife, who is of modest means, seldom if ever being able to exercise her visitation rights. Therefore, this factor also indicates that the trial judge abused his discretion in awarding custody to the husband, since he clearly has no intention of allowing the child to have continuing contact with the wife, or even with...