JERRY LEE JACKSON, APPELLANT,
v.
KENNETH L. JACKSON, SR., APPELLEE
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A Florida appellate court reversed the trial court's order allowing the father to retain temporary custody of three minor children after denying his petition to modify the original custody arrangement that awarded custody to the mother. The court held that when a modification petition is denied, the original custodian must be restored to custody and temporary arrangements cannot survive the final order.
The trial court properly denied the father's petition for modification of permanent custody, but the portion of the order permitting the father to maintain temporary custody must be reversed. When a modification petition is denied, the original custodian is entitled to have the children returned to her, as the circumstances supporting temporary custody are subsumed by the evidence presented at the final hearing.
[1] A court order granting temporary child custody is superseded by a final order denying a petition for modification of permanent custody.
[2] When a petition for modification of permanent child custody is denied, the prior custodial arrangement should be reinstated.
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Join FLexlaw to unlock all legal intelligence“We know of no basis upon which the order granting temporary custody of the children to the husband could survive the final order denying the husband's petition for modification.”
Establishes the core holding that temporary custody cannot be maintained after modification petition is denied
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced in 1981 with the mother receiving sole custody of three minor children. In 1983, the father filed a petition to modify custo…
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GRIMES, Acting Chief Judge.
This litigation involves the custody of the parties’ minor children.
The parties were divorced on September 29, 1981. The judgment of dissolution incorporated a stipulation that the wife would have sole custody of the three minor children.
On January 18, 1988, the husband filed a petition to modify the judgment to award him custody of the children on the ground of changed circumstances. The husband then moved for temporary child custody pending disposition of his petition for modification. Following an un-transcribed hearing, the court on April 26, 1983, awarded the husband temporary custody of the children and directed the Department of Health and Rehabilitative Services to prepare a home study with regard to permanent custody. After the discharge and rehiring of the wife’s counsel, the petition for modification eventually came to final hearing on May 2, 1984.
The essence of the husband’s case was that he had remarried, and he felt that he could provide a better home for the children. He was also concerned over the environment created by his wife in living out of wedlock with another man, although it was developed that the man had moved out of the wife’s house immediately after the children had been temporarily transferred to the husband. The husband admitted that the children had not fared as well at school since living with him.
At the conclusion of the husband’s case, the wife moved for a directed verdict on the ground that there was insufficient evidence of a substantial change of circumstances which would warrant a change of permanent custody. The judge announced that he was denying the husband’s petition for modification but stated that he intended for the status quo to be maintained. When the wife’s counsel began to refer to some legal authorities, the judge left the courtroom. At this point counsel stated that he had not been able to present the wife’s side of the case.1 The court ultimately entered an order denying the husband’s petition for modification but directing that the husband should continue to have care, custody, and control of the children.
At the very least, it would appear that the wife was deprived of an opportunity to present evidence concerning her right to custody.
However, there is no need to reach this issue because the court denied the petition for change of permanent custody and the husband has not challenged this ruling. We know of no basis upon which the order granting temporary custody of the children to the husband could survive the final order denying the husband’s petition for modification. Those circumstances which may have prompted the temporary change of custody were necessarily subsumed by the evidence taken at the final hearing.
Therefore, as permanent custodian, the wife was entitled to have the children returned to her. Cf. Elkins v. Vanden Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983), in which the father who had obtained temporary custody was required to return the children to the wife when his petition for change of permanent custody was denied.
We affirm the denial of the husband’s petition for modification but reverse that portion of the order which permits the husband to maintain temporary custody.
FRANK and SCHOONOVER, JJ„ concur. . We note from the record that the wife had subpoenaed an HRS representative to the hearing.
Cases With Similar Vibessemantic neighbors from the corpus
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Deysi Delgado v. Silvarrey, 528 So. 2d 1358 (Fla. 3d DCA 1988)…f the mother’s due process rights in connection with the emergency petition proceedings on the assumption that the matters raised in the father’s emergency petition were addressed at the hearing on the subsequent petitions, e.g., Jackson v. Jackson, 468 So. 2d 1098 (Fla. 2d DCA 1985), the merits of the case failed to justify a change of custody. In order to prevail on his petition, the father bore the dual burden of showing that there had been a substantial change of circumstances since the entry of the final…
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Rhines v. Rhines, 483 So. 2d 4 (Fla. 2d DCA 1985)…close his eyes to the admonition in the second summons. The husband also contends that he had been given insufficient notice of a hearing as to temporary custody. This aspect is not determinative, and we need not address it. See Jackson v. Jackson, 468 So. 2d 1098 (Fla. 2d DCA 1985). Nonetheless, we sua sponte remand for a further hearing on the child custody aspect. The final judgment provides that the wife shall be the primary residential custodian of the minor children. But there is in the final judgment…
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Cheri Marie Burger v. Burger, 862 So. 2d 828 (Fla. 2d DCA 2003)…in granting the Father’s petition to modify custody. As such, we reverse the order modifying custody and the temporary order awarding custody to the maternal grandmother and requiring the Mother to have supervised visitation. See Jackson v. Jackson, 468 So. 2d 1098, 1099 (Fla. 2d DCA 1985) (“We know of no basis upon which the order granting temporary custody of the children to the husband could survive the final order denying the husband’s petition for modification.”). Because we reverse, we decline to consid…
Authorities Cited
- Elkins v. Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983)