November 2, 2022
Bresky Law Obtains Affirmance of Temporary Custody Order in High-Conflict Child Custody Dispute
Bresky Law recently obtained affirmance of a temporary timesharing (custody) order in a high-conflict paternity proceeding. The order awarded custody of the parties’ child to the child’s maternal uncle pending further proceedings and ordered other relief. The parties had been litigating a paternity proceeding since April of 2020 and had a history of high conflict. In February of 2021, the mother filed a motion to terminate the father’s timesharing and award the mother sole custody after the father allegedly failed to seek appropriate medical treatment for the child when the child was injured in Mexico while staying there with the father. The father disputed the allegations of the mother’s motion and the relief the mother sought. The trial court held a hearing, at which the court received testimony and other evidence from the parties. The court later entered an order with supporting findings of fact based on the evidence. Among other things, the court ordered that the child will stay in the maternal uncle’s custody temporarily and the parties will have supervised visitation. The court denied the father’s request to relocate the child to the care of the father or the father’s mother. The court ordered continued family therapy focused on reunification with both parents. The father appealed the order to the Third District Court of Appeal (“Third DCA”). The father filed various papers, including his appellate briefs, addressing issues outside the scope of the trial court’s order on appeal and not properly subject to appellate review. For instance, the father challenged a fee award to the mother from a prior order than the one on appeal. The father also argued that the trial court’s order was appropriately reviewable by the appeals court as a petition for writ of certiorari or mandamus. Bresky Law represented the mother in the Third DCA in the father’s appeal of the temporary custody order. We argued that the Third DCA lacked jurisdiction to review the attorneys’ fees awarded, because the trial court made that award in an earlier order that the father failed to appeal within 30 days. We also argued that the Third DCA should affirm due to the father’s failure to provide a transcript of the hearing. We stressed that Florida’s appellate courts are highly deferential to temporary timesharing determinations made by trial courts due to the flexibility necessary in making such rulings. Finally, we argued that the trial court’s order was not reviewable by petition for extraordinary writ based upon the failure to meet the strict procedural requirements needed to obtain such relief. The Third DCA issued a written opinion in which it agreed with Bresky Law’s arguments as to each point. The Third DCA dismissed the appeal in part for lack of jurisdiction to the extent the father challenged the court’s order that he pay attorney’s fees to the mother. The Court noted that all of the trial court’s findings were predicated upon the best interests of the child, and none were contravened by any record evidence. The Court also concluded that it could not further review the propriety of the decision in the absence of a transcript. Accordingly, the Third DCA affirmed the temporary custody order in all respects. The Third DCA also conditionally granted our client’s request for appellate attorney’s fees. This favorable result for our client preserves the trial court’s ruling in the best interest of her child and allows her to seek appellate attorney’s fees in the trial court. * Not final until disposition of timely filed motion for rehearing.