Modification of a Temporary Relief Order Does Not Require Proof of Substantial Change in Circumstances

The wife in a divorce action appealed a trial court order granting her husband’s motion to modify a prior temporary relief order and designating him the primary residential parent.

The couple had two minor children, with one in elementary school and the other in daycare. After the wife filed for divorce, the trial judge entered an Order for Temporary Relief establishing a temporary time sharing schedule and designating the wife as the primary residential parent. The order said that the older child would be re-enrolled in Jupiter Elementary School in Palm Beach County because the wife testified that she was going to move back there.

A few months later, the husband asked the judge to modify the temporary relief order and appoint him as the primary residential parent in part because the wife lived in Okeechobee County. That meant the kids had a 90-minute drive to and from school each day. With the school year approaching, the court held an evidentiary hearing on the husband’s motion. The judge noted that the wife testified during the earlier hearing that she was going to move back to Jupiter but hadn’t. The children needed to be registered for the upcoming school year, and the husband was concerned about the long daily drive from Okeechobee to Jupiter each school day. The husband testified that he had a close family network in Boca Raton and that he lived very near an “A” rated elementary school.

The court took note that Palm Beach County School Board policy requires students to be assigned to schools based on the primary residence of the child’s parent, which precluded the child attending the Jupiter school if neither parent lived in the district.

The wife said she’d lived in Okeechobee County for about six months but wanted to live in Jupiter. She intended to do so, but she hadn’t found a home. She didn’t plan to enroll the child in an Okeechobee County school and wanted the child to continue to attend the school in Jupiter, despite the lengthy drive. Because of the commute and the early hour, the kids would sleep in their school clothes the night before, and she’d carry them from their bed to the car in the morning. They’d eat breakfast and brush their teeth in the car.

The trial judge found that neither parent lived in Jupiter and that the lengthy commute to school wasn’t in the children’s best interests. The order modified the temporary parenting plan to make the husband the primary residential parent and ordered that the husband’s address be used for school assignment purposes.

The wife appealed the order, arguing that the husband didn’t allege or prove—and the trial court didn’t find—that a substantial change in circumstances had occurred since the temporary relief order was entered.

Temporary Versus Final Custody Determinations

The Court of Appeal explained that pretrial, temporary child custody and time sharing determinations are subject to a different legal standard than a final custody determination. Temporary relief orders in family law cases “are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.” This is because temporary relief hearings are abbreviated, and the relief granted isn’t final… the trial judge may revisit temporary relief matters in the final judgment.

The Court of Appeal quoted an earlier decision that said:

…in proceedings where trial judges are required to determine interim timesharing schedules, the limited nature of a temporary hearing and necessity for quick action by the trial judge require us to defer to the trial court’s exercise of its discretion and not pick apart a trial court’s order for technical infirmities.

In that early case, the Court held that a trial court setting a pretrial, temporary parenting plan doesn’t err in failing to make explicit findings on the best interests of the child or on the factors in Florida Statute § 61.13(3), which dictates that “a timesharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances.”

The Court of Appeal said that the goal of temporary relief hearings is to promote stability in the lives of children while the divorce is pending—not to decide the final outcome. Contested temporary relief hearings aren’t and shouldn’t be as lengthy as contested final hearings because the parties need to get temporary relief quickly. As a result, shorter hearings are required to accomplish that goal. Provided the trial court’s decision is based on competent, substantial evidence and not an abuse of discretion, it will be affirmed on appeal. Likewise, a trial court’s ruling modifying a pretrial, temporary relief order on child custody or time sharing is subject to the same standard of review.

 

The Substantial Change in Circumstances Test

The Court of Appeal went on to hold that a substantial change in circumstances must be shown to modify a child custody determination only where a final judgment or decree was previously entered determining the issue. A final divorce decree concerning the custody of a child can be materially modified only if:

  • there are facts concerning the welfare of the child that the court didn’t know at the time the decree was entered; or
  • there’s been a change in circumstances since the decree.

Here, the wife’s argument that the trial court erred in failing to find a substantial change in circumstances when modifying its temporary relief order was without merit. The judgment was affirmed. A court isn’t required to find a “substantial change in circumstances” to modify a temporary custody order entered before a final decree has been entered. Riddle v. Riddle, 2017 Fla. App. LEXIS 4178 (Fla. Ct. App. 4th Dist. March 29, 2017).

DeVoe Law Firm can help you assert your rights to parental decision-making, establish timesharing and visitation schedules, modify timesharing and visitation schedules, and even get sole parental responsibility when appropriate. The attorneys at DeVoe law Firm know that Florida’s statutory requirements, court rules, and administrative orders in child custody and timesharing cases are to be strictly followed—or you can lose certain rights forever. Call DeVoe Law Firm to schedule a free consultation with an experienced child custody and timesharing attorney.