Third District Court of Appeal
State of Florida
Opinion filed December 15, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1910
Lower Tribunal No. 18-5452
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Maria Luisa Massa Cisneros,
Petitioner,
vs.
Carlos A. Guinand, et al.,
Respondents.
A Case of Original Jurisdiction -- Mandamus.
Shutts & Bowen LLP, and Amy Wessel Jones, B.C.S. (Fort
Lauderdale), and Kristina Candido (West Palm Beach), for petitioner.
RCC Family Law, and Richard J. Preira, and Kira Elise Willig, for
respondent Carlos A. Guinand.
Before HENDON, MILLER, and BOKOR, JJ.
MILLER, J.
Petitioner, Maria Luisa Massa Cisneros, the mother, seeks a writ of
mandamus commanding the trial court to rule on the merits of her motion for
reconsideration of a stipulated final judgment establishing a parenting plan
and an accompanying order of referral to the Family Bridges Program.
Concluding the trial court declined to pass on the merits of the motion based
upon the considered but erroneous belief that it had no jurisdiction to grant
the relief requested, we grant the petition. See Crump v. Branning,
77 So.
228, 229 (Fla. 1917).
BACKGROUND
By the terms of the judgment and order, the mother and the
respondent, Carlos A. Guinand, the father, agreed to enroll their three minor
children in Family Bridges, a program purporting to remedy the effects of
“Parental Alienation Syndrome” (“PAS”). 1 At that time, the specifics of the
program were shrouded in secrecy, but the father was to be awarded sole
custody of the children for a period of time not exceeding ninety days
following attendance at Family Bridges and an ensuing five-day family
retreat. During this no contact period, the mother was prohibited from
contacting the children through any means. In the event the mother violated
1
“Whether PAS is indeed a diagnosable affliction has been vigorously
disputed among scholars across the country.” Logreira v. Logreira,
322 So.
3d 155, 157 n.2 (Fla. 3d DCA 2021).
2
the no contact period, prohibitions on contact would begin anew. Any
disputes regarding these provisions were to be “presented to the court for a
determination,” and the no contact period was only to be extended by means
of a court order.
All three children attended the program, and, despite the fact that
ninety days has long since elapsed, the mother has been denied any form
of contact with the children.2 This issue has been extensively litigated during
a host of hearings. After one such hearing, a predecessor judge voiced an
intent to further extend the no contact period until such time as certain
undefined benchmarks were met to the satisfaction of Family Bridges. This
oral ruling precipitated the mother’s motion for reconsideration.
In the motion, the mother alleged a substantial, unanticipated change
in circumstances warranted a modification of the existing custody
arrangement. More specifically, she contended that, at the time she enrolled
the children, the exact nature of Family Bridges and its affiliates remained
unknown to her and could not be publicly discerned. She further alleged that
in ratifying the stipulated parenting plan, the predecessor judge both
abdicated its decisional role in determining the best interests of the children
to Family Bridges and ran afoul of the requirements of section 61.13(2)(c)2.,
2
The children began attending the program on June 9, 2019.
3
Florida Statutes (2021), by indeterminately awarding sole parental
responsibility to the father.
The trial court found that the motion was untimely under Florida Rule
of Civil Procedure 1.530 because it had been filed approximately five months
after rendition of the stipulated judgment. Thus, it lacked jurisdiction to
consider the merits. The instant petition ensued.
ANALYSIS
“The right of mandamus lies . . . where an inferior court refuses to take
jurisdiction when by law it ought to do so, or where, having obtained
jurisdiction, it refuses to proceed in its exercise.” Ex parte Parker,
131 U.S.
221, 226 (1889). “It does not lie,” however, “to correct alleged errors in the
exercise of . . . judicial discretion.”
Id. The resolution of this case turns on
whether the trial court was divested of jurisdiction to reconsider and modify
the terms of the stipulated judgment.
We begin our analysis by observing that “[c]hild custody
determinations are ‘some of the most difficult and sensitive problems [that]
face the judiciary.’” Talarico v. Talarico,
305 So. 3d 601, 603 (Fla. 3d DCA
2020) (alteration in original) (quoting Waites v. Waites,
567 S.W.2d 326, 330
(Mo. 1978)). Such determinations are rarely static and often require
consideration of intervening changes in circumstances. To this end, a vast
4
body of decisional authority recognizes a trial court is vested with “jurisdiction
to modify its custody orders, which would include visitation privileges, until
such time as the minor children reach their majority.” Poliak v. Poliak,
235
So. 2d 512, 514 (Fla. 2d DCA 1970). Correspondingly, section 61.13(3),
Florida Statutes, authorizes the modification of a parenting plan and time-
sharing upon “a showing of a substantial, material, and unanticipated change
in circumstances.” Such determinations are made by evaluating “all of the
factors affecting the welfare and interests of the particular minor child and
the circumstances of the family.”
Id.
Here, while couched in terms of a motion for reconsideration, the
mother sought a modification of the custody and parental responsibility
provisions embodied in the judgment and program referral order. Because
the motion facially alleged a substantial and unanticipated change in
circumstances, it comported with the relevant statutory and decisional
framework. Further, as is so often the case in custody proceedings,
regardless of the nomenclature employed by the parties, the stipulated
judgment clearly anticipates the expenditure of further judicial labor,
rendering it nonfinal. See, e.g., Kirkland v. Kirkland,
153 So. 3d 942 (Fla.
1st DCA 2014); Fowler v. Fowler,
166 So. 3d 188 (Fla. 1st DCA 2015); Freiha
v. Freiha,
169 So. 3d 1292 (Fla. 1st DCA 2015). This is evidenced through
5
both a conflict resolution provision, expressly permitting the parties to submit
any unresolved time-sharing matters to the court for resolution, and an
extraordinarily broad reservation of jurisdiction clause, allowing the court to
adjudicate a myriad of outstanding issues and order any other relief deemed
proper.
Accordingly, contrary to the ruling below, the trial court possesses
jurisdiction to consider the merits of the motion and the mother lacks any
other plain and adequate remedy at law. See Seigler v. Bell,
148 So. 3d
473, 479 (Fla. 5th DCA 2014). In closing, we are not unmindful mandamus
is an extraordinary remedy. Child custody determinations, however,
implicate rights of a constitutional dimension, and the law permits a complete
denial of parental rights only under the most extreme of circumstances.
Here, it is axiomatic the refusal to allow contact between the mother and her
children for well over two years, a time period nearly tenfold that bargained
for by the parties, warrants closer scrutiny.3 We grant the writ but, being
confident the trial court will promptly rule on the pending motion, withhold
issuance.
Petition granted.
3
As of the date of this opinion, the mother has had no contact with the
children for over thirty months.
6
