HEATHER GIELCHINSKY, APPELLANT,
v.
ROBERT J. GIELCHINSKY, APPELLEE
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In this family law appeal, the Fourth District Court of Appeal reversed a trial court's emergency order temporarily changing custody from mother to father, holding that the father failed to demonstrate a genuine emergency and that the mother was denied a full hearing on the merits.
The trial court abused its discretion in temporarily changing custody because the father did not demonstrate a real emergency justifying the temporary change. A genuine emergency—such as threat of physical harm to a child or improper removal from the state—is required to justify temporary custody changes prior to a final hearing when custody has already been established by judgment and a petition for permanent modification is pending.
[1] A trial court abuses its discretion by temporarily changing established custody without a real emergency, especially when a petition for permanent modification is pending…
[2] A temporary change of custody is not justified by a party's admission that an alleged emergency was fabricated solely to obtain an expedited hearing.
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Join FLexlaw to unlock all legal intelligence“We conclude that the trial court abuses its discretion in temporarily changing custody where, as here, custody was already established by a judgment and a petition to permanently change custody is pending, unless there is a real emergency.”
Establishes the legal standard requiring a genuine emergency to justify temporary custody changes when custody is already established.
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Join FLexlaw to unlock all legal intelligenceAfter the parties' marriage was dissolved in 1995, the father filed a petition to modify custody and an emergency motion alleging the mother was hinde…
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PER CURIAM.
After the parties’ marriage was dissolved in 1995, appellee/father filed a petition to modify custody and an emergency motion alleging that the mother was hindering his visitation rights and hampering his relationship with the children. Following an evidentiary hearing on the emergency motion, the court temporarily changed custody from the mother to the father and gave the mother visitation rights. We conclude that the father did not demonstrate such an emergency as would justify temporarily changing custody. We reverse.
At the emergency hearing, which the court set only because the father alleged there was an emergency, the mother argued that there was no emergency and thus no basis for a temporary change of custody pri-or to the final hearing. The father’s counsel then admitted that she claimed it was an emergency only to get an early hearing. In spite of that concession, the court proceeded to hear testimony from the witnesses who were present and temporarily changed custody in spite of the mother’s counsel’s request that the court wait to hear from additional witnesses who were not present.
We conclude that the trial court abuses its discretion in temporarily changing custody where, as here, custody was already established by a judgment and a petition to permanently change custody is pending, unless there is a real emergency. In Hayman v. Hayman, 522 So. 2d 531 (Fla. 2d DCA 1988), the court reversed an order changing custody on an emergency basis where the wife did not receive notice until the morning of the hearing. The second district concluded that she was denied due process because of insufficient notice, but also stated that the fact that the father desired to enter a child into a particular school was not an emergency. See also Somerville v. Reusser, 649 So. 2d 339 (Fla. 5th DCA 1995) (Husband’s desire for visitation during a particular time period did not constitute an emergency).
Although there was evidence presented at the emergency hearing that the mother was interfering with the father’s visitation rights, and section 61.13(4)(c)(2), Florida Statutes (1993), does authorize a change of custody on that ground if it is in the best interests of the children, the mother did not receive a full and complete hearing on the issue. There was no evidence of an actual emergency, and once the court became apprised of that fact, it should not have proceeded.
We do not intend to discourage trial courts from taking appropriate action where there is a true emergency, where, for example, a child is threatened with physical harm or is about to be improperly removed from the state. When the court here took such action in the absence of an emergency, however, it essentially determined the case without giving the parties the opportunity to have a full and complete hearing on the issues.
We therefore reverse the order temporarily changing custody so that the issue can be resolved properly at a final hearing on the petition for modification.
Reversed.
WARNER, FARMER and KLEIN, JJ., concur.
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Wilson v. Blaine Alan Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996)…he mother prior notice or the opportunity to present evidence on her own behalf. Under these facts, such an order violated the mother’s basic constitutional due process rights to notice and an opportunity to be heard. See Gielchinsky v. Gielchinsky, 662 So. 2d 732, 733 (Fla. 4th DCA 1995); Shaw v. Shaw, 455 So. 2d 1156, 1157 (Fla. 5th DCA 1984). We acknowledge that entry of an ex parte order modifying child custody is not per se reversible, but instead, such an order can be upheld where the case involves a t…
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Loudermilk v. Loudermilk, 693 So. 2d 666 (Fla. 2d DCA 1997)…ding notice to the opposing party. However, such an order requires an emergency situation such as where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state. See Gielchinsky v. Gielchinsky, 662 So. 2d 732, 733 (Fla. 4th DCA 1995); see also Wilson v. Boseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996) (concluding that parent’s removal of children from state without noncustodial parent’s knowledge was not emergency); Somerville v. Reusser, 649 So. 2d 339 (F…
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Ingrid BON v. Nestor A. Rivera, 10 So. 3d 193 (Fla. 4th DCA 2009)…on the “true emergency” test, however, is misplaced. That test applies in very limited circumstances, such as where a child is threatened with physical harm or is about to be improperly removed from the state. See, e.g., Gielchinsky v. Gielchinsky, 662 So. 2d 732, 733 (Fla. 4th DCA 1995). Where there is evidence of a true emergency, a trial court may enter an order temporarily modifying custody without affording prior notice to the opposing party. Smith v. Glider, 932 So. 2d 393, 398 (Fla. 2d DCA 2006). Here…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hayman v. Hayman, 522 So. 2d 531 (Fla. 2d DCA 1988)
- Martin Cnty. v. Aviation Ctr., Inc., 649 So. 2d 339 (Fla. 4th DCA 1995)