Gordon v. Smith, 92-3469

• Decision Date: 17 March 1993
• Docket Number: No. 92-3469,92-3469
• Citation: 615 So.2d 843
• Parties: 18 Fla. L. Week. D725 Jo Ann GORDON, f/k/a Jo Ann Smith, Petitioner, v. Daniel K. SMITH, Respondent.
• Court: Florida District Court of Appeals

Page 843

615 So.2d 843

18 Fla. L. Week. D725

Jo Ann GORDON, f/k/a Jo Ann Smith, Petitioner, v. Daniel K. SMITH, Respondent.

No. 92-3469.

District Court of Appeal of Florida Fourth District.

March 17, 1993.

Martin L. Haines, III, of Martin L. Haines, III, Chartered, North Palm Beach, for petitioner.

Daniel K. Smith, pro se.

FARMER, Judge.

In this petition for a writ of common law certiorari, the mother seeks extraordinary review of an order for psychological examinations of herself, the father, and their child. The parties are embroiled in post dissolution proceedings to modify custody and visitation of their child. We deny review and take the moment necessary to explain our rationale.

The final judgment confirmed the parties' agreement that the mother would have primary residential custody. Recently she has moved to modify custody to become the sole custodial parent and severely limit the father's right of visitation. Without belaboring the details in her modification papers, it is sufficient to say that they implicitly charge the father with inappropriate conduct and possible sexual abuse during overnight visitations of their child, now five, and allege that the child has become reluctant to see his father. The father responded with his own attempt to modify custody, claiming that the mother had concocted lies about alleged sexual abuse and has, herself, violated the court's directives regarding shared parental responsibility.

At a hearing the court heard testimony from a psychologist retained by the mother. In substance he testified that he had been treating the child for more than one year and had concluded that visits with the father should be suspended. He also said that, in his opinion, the number of adults and professionals, such as psychologists, who see the child should be limited for the child's sake.

As we recently held in Pariser v. Pariser, 601 So.2d 291 (Fla. 4th DCA1992), "the granting or denying of an order for a psychological evaluation is a discretionary act." 601 So.2d at 292. Hence, we can overturn this discretionary ruling only upon a conclusion that no judge could reasonably have ordered such an evaluation. Id. We believe that the testimony of the mother's hired expert alone furnished a sufficient basis for the good cause necessary for a psychological examination of the child as well as his parents.

It is axiomatic that a finder of fact may judge the persuasiveness and credibility of an expert's testimony and apply his own knowledge and experience when weighing opinion evidence. Russo v. Heil Construction Inc., 549 So.2d 676 (Fla. 5th DCA1989). When that expert has been hired and called to testify by one of the adversaries to a contested proceeding, there is nothing unreasonable or improper with the fact finder declining to accept the testimony of such an expert. Cf. Langston v. King, 410 So.2d 179 (Fla. 4th DCA1982) (error to refuse to permit expert to be questioned about his compensation or interest in the proceeding). When the subject of the expert's testimony relates to the custody of minor children, there is an even more important reason for the trial judge to feel uncomfortable with hearing only the expert testimony of a party with an ax to grind.

A trial judge's discomfort with a party's retained expert's testimony may quite reasonably be intensified when that expert testifies, as here, that the child should be kept from being evaluated by other psychologists. While we have no quarrel with the idea that "the number of adults and professionals a young child is working with should be kept to a minimum," that does not mean that the trial judge's discretion is limited to the one chosen by a party--that the number of the limitation is one. A judge is certainly free to view such testimony with some skepticism.

But even apart from the weight of the only expert's testimony, there is independent statutory authorization to order psychological evaluation in child custody proceedings. We first note that in section 61.13, Florida Statutes (1991), subsection (3) directly and expressly requires a judge in a custody case to consider and evaluate certain specific issues and provides as follows:

For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including but not limited to:

(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.

(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 or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(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 the child.

(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) Any other fact considered by the court to be relevant. [e.s.]

It seems to us that subdivisions (f), (g), (i) and (j) clearly make the psychological condition of parents and child especially relevant in this modification of custody proceeding in light of the accusations by both parties. In short, her accusation that he has allegedly sexually abused the child and his allegation that she has deliberately concocted these charges to achieve sole custody--both equally reprehensible conduct--furnish a relevant foundation for the examinations of both parents as well as the child.

If section 61.13 supplies the relevancy, then section 61.20, Florida Statutes (1991), furnishes the specific tool. That statute provides in pertinent part:

(1) In any action where the custody of a minor child is in issue, the court may order a social investigation and study concerning all pertinent details relating to the child and each parent when such...