Opinion
No. 78-2384.
May 11, 1979.
Appeal from Circuit Court, Dade County; Ralph B. Ferguson, Jr., Judge.
Gilbride Heller, Miami, and Lewis N. Brown, for appellant.
Richard M. Gale, Miami, for appellee.
Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
The order of February 2, 1978 awarding temporary custody of the minor child to the father-appellee, and the order of November 15, 1978 awarding him permanent custody are reversed because proper notice of neither hearing was given to the mother-appellant. Sections 61.131, 61.1312, Florida Statutes (1977). The cause is remanded for a full hearing, upon proper notice, of the father's motion for modification of the final judgment of October 25, 1977 which awarded custody to the mother. That final judgment is thus restored to its full force and effect.
By stipulation of the parties before us in open court, the physical custody of the child shall remain with the father pending the hearing. We specifically order, however, that this temporary physical custody shall not affect the burden placed upon the father to demonstrate affirmatively, in accordance with the applicable law, his right to a modification of the custody provisions of the final judgment. E.g., Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967); Ritsi v. Ritsi, 160 So.2d 159 (Fla.3d DCA 1964), cert. denied, 166 So.2d 591 (Fla. 1964).
Because of the circumstances involved in this case, we have advanced the cause for oral argument. For the same reasons, we direct that the hearing ordered by this opinion shall be conducted as speedily as reasonably possible.
Petition for rehearing is dispensed with, and the mandate shall issue forthwith.
It is so ordered.