Opinion
Case No. 2D03-2446
Opinion filed October 29, 2003.
Appeal from nonfinal order of the Circuit Court for Pasco County; Linda H. Babb, Judge.
R.J. Ferraro, III, of Ferraro Ferraro, P.A., Stuart, for Appellant.
Kim Kickliter Seavey of Nancy McRoberts Parham, P.A., Tampa, for Appellee.
Richard Edward Dibble, III (the Father), appeals the emergency ex parte order granting temporary custody of their two children to Rhoda Leigh Bowlin (the Mother) and denying the Father visitation. Because the Mother's motion failed to allege the requisite grounds that would have authorized the trial court to enter an order on an emergency motion for a temporary change of custody without reasonable notice to the Father, we reverse. See Loudermilk v. Loudermilk, 693 So.2d 666, 667-68 (Fla. 2d DCA 1997).
We remand to the trial court for a full evidentiary hearing in which the burden shall be on the Mother to prove the grounds warranting a modification of temporary custody in the manner she requested. See Williams v. Williams, 845 So.2d 246, 249 (Fla. 2d DCA 2003). The Father, too, shall be permitted to present evidence, and the trial court shall consider the children's best interests. See id. at 248-49.
The hearing shall take place within twenty days of the issuance of our mandate unless both parties agree to hold the hearing at a later date or to have it coincide with the "final hearing on custody and visitation" that was contemplated by the ex parte order. The emergency order shall remain in effect until an evidentiary hearing is held in a manner consistent herewith. See Crooks v. Crooks, 657 So.2d 918, 919 (Fla. 4th DCA 1995).
Reversed; remanded with directions.
ALTENBERND, C.J., and SILBERMAN, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED