Posted by Nydia Streets of Streets Law in Florida Child Custody

Does the same standard apply to a temporary custody order as it does to a final custody order when it comes to modifying the order? Judges usually have wider discretion with temporary relief orders because the orders are temporary and issues can be corrected in a final order. This was an issue in the case Saenz v. Sanchez, 3D23-1018 (Fla. 3d DCA November 15, 2023).

In this divorce case, the court held a hearing at which testimony and evidence was presented over a three-day period. Both sides presented evidence regarding the best interest of the children, including whether the oldest child should remain enrolled at a military school. The trial court ultimately entered a temporary order which required the parties’ oldest son to remain at the military school, and denied any contact between the mother and the parties’ younger minor children. The mother appealed arguing the trial court “abused its discretion by placing the burden on her to show a substantial, material, unanticipated change in circumstances warranting modification of the Father’s 100% timesharing and the return of B.M.S from military school.”

The appellate court noted “While the trial court does refer to a lack of evidence indicating any change in circumstances, this does not equate to applying the ‘extraordinary burden’ of demonstrating ‘a substantial, material, and unanticipated change in circumstances’ warranting modification of a parenting plan and timesharing schedule. [. . .] This legal standard applies only to a motion for modification that is filed after the trial court has established a final timesharing plan, not a temporary child custody and timesharing determination as we have here. A review of the evidentiary hearing transcripts as a whole demonstrates that the trial court here did apply the correct legal standard - namely, the best interest of the three minor children.” Noting testimony from the guardian ad litem and the parties, the appellate court concluded “This conclusion is supported by competent substantial evidence presented over the course of the three-day evidentiary hearing. Therefore, the trial court did not abuse its discretion.”

Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.