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Fort Lauderdale Divorce Custody Modification Requires Satisfaction Of A Two Part Test

In order to temporarily modify custody in Broward County, Florida, you must show that there has been a substantial or material change in circumstances and that the modification is in the best interest of the child or children involved. There must be a factual basis sufficient to show that conditions have become materially altered since the entry of the prior custody order. In the case of Bon v. Rivera, the Fourth District Court of Appeal reversed a Fort Lauderdale, Florida divorce judge who granted the Former Husband’s Emergency Motion for Temporary Change of Custody.

At the time of the parties divorce, the Former Wife resided in Miami-Dade County, Florida and the Former Husband resided in Broward County, Florida. The Final Judgment of Dissolution of Marriage that incorporated the parties’ marital settlement agreement stated that neither party shall relocate the minor children from Miami-Dade County, Broward County or the southern portion of Palm Beach County, Florida. Two years after the divorce, the Former Wife accepted a job in West Palm Beach, Florida and advised the Former Husband that she intended to move with the two minor children.

The Former Husband filed an Emergency Motion for Temporary Custody, Child Support and Attorney’s Fees alleging that the Former Wife had violated the relocation provisions of the Final Judgment of Dissolution of Marriage. The trial court entered an order modify the Final Judgment of Dissolution of Marriage and granting the Former Husband temporary custody. The Former Wife appealed the decision of the trial court and alleged that the trial court abused its discretion in modifying custody since there was no true emergency.

In reversing the decision of the trial court, the Fourth District Court of Appeal held that the trial court erred in temporarily modifying custody of the parties’ children. The Court reasoned that the Former Husband did not specifically allege, in his motion or at the hearing, that there had been a substantial change in circumstances since the entry of the Final Judgment of Dissolution of Marriage. Furthermore, the trial court did not make any written findings to support its ruling. The Court further stated that Former Wife had a misplaced reliance on the “true emergency” test. The Court reasoned that under the “true emergency test”, a court can modify custody without notice when there is a showing that the minor children are to be threatened with physical harm or about to be removed from the state. However, in the instant case this test did not apply since the trial court conducted an evidentiary hearing after notice to both parties.