Posted by Nydia Streets of Streets Law in Florida Child Custody
Can a Florida court temporarily modify a child custody determination? Depending on the circumstances, a temporary order may be entered to protect a child. But if there is no emergency, a court may not be able to modify a child custody determination without a properly filed petition for modification. This was an issue in the case Radko v. Levi, 4D2024-0162 (Fla. 4th DCA September 4, 2024).
In this post-judgment child custody case, the father filed a motion for pick-up order, alleging the mother was not allowing him his time-sharing with their child, and that the mother was not taking the child to the hospital for evaluation as ordered by the court after the child threatened self-harm. The father requested temporary sole custody. After a hearing, the trial court determined it was in the best interest of the child to grant the father’s request for the child’s psychological and emotional well-being. The mother objected because the father had not filed a petition for modification of the parenting plan. The trial court entered an order over the mother’s objection stating that exigent circumstances warranted granting the father temporary sole custody. The mother appealed.
The appellate court reversed, holding “Here, the father did not file a proper petition for modification or allege a substantial change in circumstances since the final judgment established shared custody. Likewise, the trial court did not make a finding of a substantial change in circumstances in its order modifying custody. Thus, the trial court abused its discretion in temporarily modifying custody of the parties’ child. The father also did not allege any emergency circumstances that would permit a temporary change in custody prior to a final hearing on a modification petition. [. . .] We therefore reverse the order to pick-up minor child, which placed the child in the father’s temporary sole custody. Our holding is without prejudice to the father bringing a properly pleaded petition for modification of custody.”
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