Posted by Nydia Streets of Streets Law in Florida Child Custody

A temporary change in time-sharing can be ordered if there is an issue affecting the best interest of the children. At hearings regarding child custody issues, both parties must be given the opportunity to present evidence regarding the best interest of the children. This was an issue in the case Whitacre v. Ragan, 2D2023-1906 (Fla. 2d DCA June 21, 2024).

In this post-judgment custody case, the father moved to dissolve a temporary order which modified his time-sharing. Under the original parenting plan, the father had 80% time-sharing while the mother had 20%. The temporary order presumably modified this to grant the mother more or primary time-sharing. The temporary order was in place for 4 years before the father moved to dissolve it. The mother objected, arguing her petition for modification of the parenting plan should be heard along with the motion to dissolve. The court declined, and a hearing proceeded on the father’s motion to dissolve the temporary order. At the hearing, the mother was not permitted to have witnesses testify because the court admonished that her evidence should be focused on whether or not the emergency that supported the entry of the temporary order was still an issue. The trial court ultimately entered an order dissolving the temporary custody order and restoring the father’s original time-sharing. The mother appealed.

The appellate court noted that rather than focusing on if the circumstances still existed that supported entry of the temporary order, “To keep the temporary custody order in effect, the mother had the burden of proving that the best interests of the children would be promoted by keeping the status quo pending the hearing on her petition to modify the final judgment.” The court went on “The trial court abused its discretion in failing to consider the mother's evidence of the children's best interests. [internal citation omitted]. The trial court was focused on the issue of whether the emergency circumstances on which the order was based continued to exist. However, ‘a trial court may extend temporary custody pending resolution of a petition for modification without an emergency being present.’ [internal citation omitted].”

The court concluded “Accordingly, we reverse the order dissolving the temporary custody order. But because several months have elapsed since the entry of the order on appeal and this court has no information regarding the status of the parents or the children, we remand with directions that, barring an emergency, the children's present custody arrangement be maintained until the court determines the mother's amended supplemental petition for modification.”

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