EFTA00230786

requirements for a stay rests with the party requesting the stay. A trial court is not obligated, or 
even encouraged, to enter such a stay as the Appellate Rules specifically provide, "In the absence 
of a stay, during the pendency of a review of a non•final order, the lower tribunal may proceed 
with all matters, including trial or final hearing; provided that the lower tribunal may not render 
a final order disposing of the cause pending such review." Fla. R. App. P. 9.130(1) (emphasis 
added). 
Defendants ask the Court to stay disclosure of a public document which was never 
properly sealed. Factors to 
'doted by a court when deciding whether to enter a stay 
"include the moving p 
s likeliho 
success on the merits, and the likelihood of harm 
should a stay not be 
 
 769 U2d 389, 391 n.4 (Fla. 3d DCA 1999). 
Defendants fail to adequately ad 
s these fa 
rs in their motion. 
In fact, Defendant 
completely ignores the likelihood 
Likely this is because there is no 
likelihood that the Fourth District would reverse 
ling since the proper procedures 
for sealing the NPA were never followed. 
As to likelihood of harm, the only reference Defendan 
to this issue is in 
paragraph 3 of his motion. Here, Defendant merely m 
mad assertion that there will be 
"irreparable harm caused by the disclosure of the NPA." There is no explanation of who will be 
harmed or what harm will be caused. How can a public document which redacts the names of 
the minor victims cause harm? This necessary question is never answered. Defendant's broad 
and vague assertion is insufficient to grant a stay. 
Finally, since there has been no showing by Defendant EPSTEIN that the proper 
—procedure for sealing court documents were ever followed, the NPA is a public record. 
Page 2of 3 
EFTA00231326

Therefore, Plaintiff respectfully requests the Court DENY Defendants' Motion to Stay the 
Proceedings. 
CERTIFICATE OF SERVICE 
HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U. S. 
Mail, postage prepaid, this 26 day of June, 2009 to Jack A. Goldberger, Esq., 250 Australian 
Avenue, Suite 1400, West Palm Beach, FL 334101; Bruce E. Reinhart, Esq., 250 Australian 
Avenue South, Suite 1400, West Palm Beach, FL 33401; Robert D. Critton, Jr., Michael J. Pike, 
515 North Flagler Drive, Suit 
est Palm Beach, FL 33401. 
LEOPOLD—KM/TN, P.A. 
2925 PGA Boulevard 
Suite 200 
ens, FL 33410 
(facsimile) 
T. KUV1N, Esq. 
ar No.: 089737 
Page 3of 3 
EFTA00231327

Page 2 of I I 
Wdstlaw. 
76912d 389 
769
2d 389
 Fla. L. Weekly D2439 
(Cite as: 769 ..241 389) 
District Court of Appeal of Florida, 
Third District. 
Deborah PEREZ, Appellant, 
v. 
Jorge M. PEREZ, Appel lee. 
No. 99.2182. 
Oct. 27, 1999. 
Rehearing Denied Dec. 7, 1999. 
Following divorce, parties agreed to modification 
of marital settlement agreement which specifically 
provided that mother could permanently relocate 
children to Utah. Father petitioned for modification 
of custody. The Circuit Court, Dade County, Eu-
gene J. Fierro, J., split custody of children, and 
mother appealed. Parties and guardian ad litem 
filed various motions. Mother moved to prohibit 
further involvement in appellate proceedings by 
guardian ad litem and counsel appearing on behalf 
of guardian. The District Court of Appeal, Gersten, 
J., held that: (I) guardian did not have authority to 
submit brief or motions at appellate level of child 
custody proceeding, and (2) there was no authority 
permitting guardian ad litem to retain counsel on 
behalf of herself in appeal. 
Motion granted. 
Sorondo, J., filed concurring opinion 
West Head notes 
Ill Appeal and Error 30 0=477 
30 Appeal and Error 
301X Supersedeas or Stay of Proceedings 
30k476 Upon Allowance by Court or Judge 
30k477 k. Authority of Court or Judge. 
Most Cited Cases 
District Court of Appeal has authority to issue stay 
for purpose of preserving status quo during appel-
late 
proceeding. 
West's 
F.S.A. 
R.App.P.Rule 
Page 1 
9.310(0. 
[21 Appeal and Error 30 €=479(1) 
30 Appeal and Error 
301X Supersedeas or Stay of Proceedings 
30k476 Upon Allowance by Court or Judge 
30k479 Grounds for Allowance 
30k479(1) It. In General. Most Cited 
Cases 
Factors which are considered by District Court of 
Appeal in deciding whether to grant stay include 
moving party's likelihood of success on merits, and 
likelihood of harm should stay not be granted. 
West's F.S.A. R.App.P.Rule 9.310(f). 
[31 Child Custody 76D etzz9OS 
76D Child Custody 
76DX111 Appeal or Judicial Review 
76Dk905 k. Transfer of Cause and Proceed-
ings in General. Most Cited Cases 
(Formerly 134k303(3)) 
Father's failure to return children to mother after 
summer vacation, as required under parties post-
divorce visitation arrangements, and father's at-
tempts to manipulate children's custody preference 
were sufficient to establish that mother had likeli-
hood of success on merits of her appeal of order 
modifying custody, warranting issuance of stay, for 
purpose of preserving status quo during appellate 
proceeding. West's P.S.A. R.App.P.Rule 9.3100). 
[4.I Child Custody 76D fe=i903 
76D Child Custody 
76DX111 Appeal or Judicial Review 
76Dk903 k. Right of Review and Parties. 
Most Cited Cases 
(Formerly 211k19.3(6)) 
Guardian ad litem did not have authority to submit 
brief or motions at appellate level of child custody 
proceeding. West's F.S.A. § 61.401; West's F.S.A. 
R.App.P.Rule 9.020. 
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EFTA00231328

Page 3 of 11 
7691.2d 389 
769 
.2d 389
4 Fla. L. Weekly D2439 
(Cite as: 769 52d 389) 
[5] Infants 211 C:=85 
211 Infants 
211VII Actions 
211k76 Guardian Ad Litem or Next Friend 
21Ik85 k. Duties and Liabilities. Most 
Cited Cases 
(Formerly 211k19.2(2)) 
Universally recognized function of guardian ad 
litem in custody dispute is to protect best interests 
of children. 
(6) Infants 211 4C=.77 
211 Infants 
211 VII Actions 
211k76 Guardian Ad Litem or Next Friend 
2111O7 k. In General. Most Cited Cases 
(Formerly 211k19.3(1)) 
Guardians ad litem serve important role, under lim-
ited circumstances, by acting as representatives of 
children and promoting society's interest in protect-
ing children from traumas commonly associated 
with divorce and custody disputes. 
17) Infants 211 Ca785 
211 Infants 
21 I V11 Actions 
211k76 Guardian Ad Litem or Next Friend 
211k85 k. Duties and Liabilities. Most 
Cited Cases 
(Formerly 211k19.3(1)) 
Duties and responsibilities of guardian ad litem are 
not coextensive with those of attorney. West's 
F.S.A. § 61.403. 
(8) Child Custody 76D C=.900 
76D Child Custody 
76DXIII Appeal or Judicial Review 
76Dk900 k. In General. Most Cited Cases 
(Formerly 211k19.3(6)) 
Child Custody 761) 4C=4)03 
76D Child Custody 
Page 2 
76OX111 Appeal or Judicial Review 
76O1(903 k. Right of Review and Parties. 
Most Cited Cases 
(Formerly 21Ik19.3(6)) 
Appellate court is not fact-finding court and there is 
no proper role for guardian ad litem at appellate 
level. West's F.S.A. § 61.403. 
[9] Infants 211 e=a85 
211 Infants 
211VII Actions 
21Ik76 Guardian Ad Litem or Next Friend 
211k85 k. Duties and Liabilities. Most 
Cited Cases 
(Formerly 211k19.2(2)) 
Guardians ad litem are required to act in the best in-
terests of children even if this conflicts with the 
children's wishes, and must serve as independent 
fact investigators. West's F.S.A. § 61.403. 
110] Child Custody 761)(:=903 
76D Child Custody 
76OX111 Appeal or Judicial Review 
76Ok903 k. Right of Review and Parties. 
Most Cited Cases 
(Formerly 211k19.3(6)) 
Filing of motions and brief by guardian ad 'item in 
appellate custody proceedings conflicts with guard-
ian's proper function of serving as independent fact 
investigator, and 
violates 
statutory prohibition 
against guardians acting as advocates. West's 
F.S.A. § 61.403. 
[11] Child Custody 761) C=409 
76D Child Custody 
76OV111 Proceedings 
76DVIII(A) In General 
76Dk409 k. Parties; Intervention. Most 
Cited Cases 
(Formerly 211k19.3(3)) 
Minor children in custody proceeding are not con-
sidered as "necessary parties" to action. 
[12] Child Custody 761) e;?903 
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EFTA00231329

769'.2d 389 
769
.2d 389.,24 Fla. L. Weekly D2439 
(Cite as: 769 M.2d 389) 
76D Child Custody 
76DX111 Appeal or Judicial Review 
76Dk903 k. Right of Review and Panics. 
Most Cited Cases 
(Formerly 211k19.3(6)) 
There is no authority permitting guardian ad litem 
to retain counsel on behalf of herself in appeal, 
where guardian is not party to proceedings, and 
where guardian is purportedly appearing on behalf 
of children who are also not parties in appellate 
proceedings. 
*390 Marsha B. Elser, Miami; Cynthia L. Greene, 
Miami, for appellant. 
Podhurst, Orseck, Josefsberg, Eaton, Meadow, 
Olin, & Perwin, and Joel S. Pcrwin, Miami; Bar-
ranco, Kircher, Vogelsang & Boldt, and Kimberly 
L. Boldt, Miami, for appellee. 
Before GERSTEN, SHEVIN, and SORONDO, JJ. 
ON APPELLANT'S RENEWED MOTION TO PRO-
HIBIT FURTHER INVOLVEMENT IN THESE AP-
PELLATE PROCEEDINGS BY THE GUARDIAN 
AD LITEM AND/OR COUNSEL APPEARING ON 
BEHALF OF THE GUARDIAN AD LITEM 
GERSTEN, Judge. 
Appellant, Deborah M. Perez ("the Former Wife"), 
moves this Court to prohibit further involvement in 
these appellate proceedings by the Guardian ad 
Litem ("Guardian") and counsel appearing on be-
half of the Guardian. We grant the Former Wife's 
motion and write further to discuss our serious con-
cerns regarding the proceedings in this case, and to 
clarify that there is no statutory basis for a Guardi-
an to file motions and a brief in a child custody ap-
pealfiNi 
FN1. Initially, we denied 
the Former 
Wife's motion to prohibit further involve-
ment by the Guardian ad Litem. However, 
we cautioned in our ruling that the denial 
Page 4 of II 
Page 3 
was "without prejudice to renew if neces-
sary." At this stage of the proceedings, and 
during a flurry of emergency motions filed 
by the appellee. the Guardian had filed 
only 
two 
documents; 
one 
entitled 
"Guardian ad Litem's Emergency Motion 
for Rehearing of Stay" and one entitled 
"Guardian ad Litem's Emergency Motion 
to Relinquish Jurisdiction." Both were 
denied. Thereafter, the Guardian advised 
counsel for the Former Wife that a brief 
would be filed with this Court. The Former 
Wife then renewed her motion correctly 
observing that the Guardian intended to 
continue her wholly unauthorized and im-
proper conduct. 
Background Facts 
The Former Wife and appellee Jorge M. Perez. 
("the Former Husband") divorced in 1995. The 
Former Wife became primary residential parent of 
the parties' three minor children. In November of 
1996, the parties agreed to a modification of the 
marital settlement agreement which specifically 
provided that the Former Wife could permanently 
relocate the children to the State of Utah in June of 
1998. 
In accordance with the 1996 agreement, the Former 
Wife purchased property in Utah, sold the home 
where she and the children were living in Miami, 
enrolled the children in a Utah school, and notified 
the Former Husband that she and the children 
would be relocating to Utah on June IS, 1998. 
However, two weeks prior to the scheduled and 
agreed upon departure date, the Former Husband 
filed a petition for modification of custody and at-
tempted on an emergency basis to enjoin the 
Former Wife from relocating the children. The trial 
court denied the emergency motion determining the 
parties had agreed to the relocation, and the Former 
Wife and children moved to Utah. 
Thereafter, pursuant to the parties' visitation agree-
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EFTA00231330

Page 5 of 11 
769 
.2d 389 
769 
2d 389a24 Fla. L. Weekly D2439 
(Cite as: 769 M.2d 389) 
ment, the children spent thi *391 summer of 1999 
visiting with the Former Husband. The children 
having been enrolled in school in Utah, were to be 
returned to the Former Wife on August 21, 1999. 
During this agreed summer visitation, the Former 
Husband's petition for modification proceeded to 
trial. On July 30, 1999, the trial court entered an or-
der modifying custody which is the subject of the 
main appeal. 
The order split custody of the children, awarding 
custody of the two sons to the Former Husband, and 
custody of the parties' daughter to remain with the 
Former Wife.mThe trial court's basis for splitting 
custody was the expressed preference of the two 
sons to live in Miami. 
FN2. We note that the Former Husband's 
petition did not seek an award of split cus-
tody. 
In its order, the court noted that the Guardian, Jac-
queline Valdespino, testified there was a substantial 
change in circumstances in accord with the Former 
Husband's position. However, the court explained 
that it did not base its decision solely on the Guard-
ian's testimony and report, because "part of her 
testimony at trial, as well as part of her conclusions 
in the Guardian Ad Litem's report ... are based 
partly on evidence which is clearly hearsay...." 
On August 9, 1999, the Former Wife filed a Motion 
for Rehearing and Motion For Stay Pending Appeal 
which was denied by the trial court on August 20, 
1999,0 On August 23, 1999, the Former Wife 
filed her notice of appeal, and the next day filed an 
emergency motion seeking a stay of the trial court 
order, pending review in this Court. 
FI43. The children had been enrolled in 
school in Utah for over a year, and the 
agreement provided that they were to be 
returned to the Former Wife on August 
21st. In spite of the fact that the trial 
court's custody modification order 
had 
been suspended by the filing of the Former 
Page 4 
Wife's Motion for Rehearing, the Former 
Husband placed the children in school in 
Miami on August 18th. The children were 
not returned to the Former Wife, although 
the primary residence of the children re-
mained with the Former Wife at the time 
the Former Husband enrolled them in school. 
Appellate Proceedings: A Barrage of Motions 
il)[2][3i On August 24. 1999. the Former Wife 
filed an Emergency Motion for Stay Pending Re-
view and a Motion to Expedite Appeal. The Former 
Wife's motion for stay alleged a likelihood of suc-
cess on the merits, and that the best interests of the 
children required maintaining the status quo. Pursu-
ant to her agreement with the Former Husband, the 
Former Wife requested that the children resume 
school in Utah pending a final decision on appeal. 
This Court granted the Former Wife's motions or-
dering a stay pending appeal, and that the appeal be 
expedited.m. 
FI44. This Court has authority to issue a 
stay under Rule 9.310(f), Florida Rules of 
Appellate Procedure, for the purpose of 
preserving the status quo during an appel-
l
e proceeding. See Hirsch v. flinch, 309 
.2d 47 (Fla. 3d DCA 1975). Once a stay 
is issued, the stay remains in effect until 
the appellate court mandate is issued. Rule 
9.310(e), Fla. R.App. P. Factors which are 
considered by 
this Court in deciding 
whether to grant a stay include the moving 
party's likelihood of success on the merits, 
and the likelihood of harm should a stay 
not be granted. See State ex rel. Price v. 
McCord, 380 1.2d 1037 (Fla.1980). 
During the course of the trial court pro-
ceedings, the children had been spending 
the summer with the Former Husband 
pursuant to the parties' visitation ar-
rangements. The Former Husband did 
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EFTA00231331

769'.24 389 
769
.2d 389,_24 Fla. L. Weekly D2439 
.
(Cite as: 769 
.2d 389) 
not return the children to the Former 
Wife, see supra note 3, and the Former 
Wife's motions contain facts and argu-
ments indicating the Former Husband 
used this summer time as a means to ma-
nipulate the children's custody prefer- ence. 
These facts and others were sufficient to 
establish the Former Wife had a likeli-
hood of success on the merits. Coupled 
with our additional concerns regarding 
the children's schooling and their best in-
terests, greater harm could result if the 
status quo were not p 
ed. See Offer-
man v. Offerman, 6433.24 1184 (Fla. 
5th DCA 1994)(granting motion to stay 
temporary custody order). The facts 
raised by the Former Wife in support of 
her motion for a stay are most troubling, 
and we emphasize that this Court will 
not tolerate the improper use of visita-
tion to manipulate a child's custody pref-
erence. 
*392 This Court's order granting the stay resulted in 
a flood of motions, including an "Emergency Mo-
tion For Rehearing of Stay" filed by the Guardian 
advocating the Former Husband's position, and a 
"Notice of Appearance filed by an attorney on be-
half 
the 
Guardian"."a 
Not 
surprisingly, 
the 
Former Husband also filed an emergency motion 
for review of the order granting the stay.** On 
August 26, 1999, this Court denied both the Former 
Husband's and the Guardian's motions. 
PN5. The Notice of Appearance filed by 
the attorney stated she appeared "on behalf 
of the Guardian." A Notice of Appearance 
was also filed by the Guardian "on behalf 
of the minor children as Guardian Ad Litern." 
FN6. The Former Husband's motion has 
the rather lengthy title of "Emergency Mo-
tion For Rehearing and For En Banc Re-
Page 6 of 11 
Page 5 
view of the Court's Ex Parte Order Grant-
ing the Wife's Motion to Stay Execution of 
a Child Custody Order, Without Waiting 
for the Husband's Response to That Mo-
tion." It incorrectly states that this Court's 
ruling constitutes an "ex parte judicial de-
termination ... (which) is simply and flatly 
a violation of due process." There is no au-
thority for an "en banc review" of an order 
issued by an appellate panel granting a stay 
pending review. More importantly, this 
Court has the inherent authority in its dis-
cretion to enter a ruling on a motion at any 
time, with or without a responsive plead-
ing. in any event, the Former Husband's 
Emergency Motion was thoroughly con-
sidered at the time it was filed, and was 
denied by this Court. 
In accordance with this Court's mandate, the 
parties' two sons were sent to Utah on August 27, 
1999. Three days later, on August 30th, the oldest 
son traveled to Miami where he was met at the air-
port by the Former Husband. This prompted the 
Guardian and the Former Husband to once again at-
tempt to evade the stay order. 
The Former Husband first filed an emergency mo-
tion in the trial court where the trial Judge held an 
emergency hearing by telephone. The Former Hus-
band told the trial court that the Guardian had 
"advised" him not to return the child to the Former 
Wife in Utah "before (the child sees) a professional 
counselor who can address his present state of 
mind." The trial court denied the motion finding 
that this Court had "effectively taken jurisdiction" 
over the matter, and ordered the child be returned to 
Utah to "comply with the law that is now the law of 
this case; i.e. the stay of these proceedings." 
Instead of returning the child, however, both the 
Guardian and the Former Husband then decided to 
file motions again in this Court. The Guardian's 
emergency motion asked this Court to "relinquish 
jurisdiction" to the trial court to consider testimony 
as to possible emotional damage to the parties eld-
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EFTA00231332

769'.2d 389 
769
.2d 38924 Fla. L. Weekly D2439 
(Cite as: 769 lad 389) 
est son. The Former Husband filed a similar motion 
entitled "Father/Appellee's Response in Support of 
Guardian Ad Litem's Emergency Motion to Relin-
quish Jurisdiction." Both the Former Husband's and 
the Guardian's motions were denied. Our denial of 
these motions was based upon what should be an 
obvious theorem-that parents and their minor chil-
dren must obey court orders. 
We are extremely concerned over this type of mo-
tion practice and caution counsel that "appellate 
motion practice is not a game of ping-pong in 
which the last law
 to serve wins." See Sarasota 
County v. Ex, 645 ..2d 7 (Fla. 2d DCA 1994). To 
an even greater extent, we are extremely concerned 
with the impact of such behavior on children. Chil-
dren should not be "played" as if in a game of ping-
pong where the parent with the greater resources to 
serve the greatest number of motions wins. 
Apparently, the Former Wife was also disturbed by 
the Guardian's involvement in the appellate pro-
ceedings, and moved to prohibit further involve-
ment by the Guardian when she filed her response 
to the Guardian's second emergency motion on 
September 1, 1999. Although we denied the motion 
to prohibit at this time, see infra note 1, the denial 
was "without prejudice to renew if necessary." 
When the Guardian notified counsel for the Former 
*393 Wife of her intent to file an appellate brief 
with this Court. the Former Wife renewed her mo-
tion. Por the reasons that follow, we grant the mo-
tion and prohibit further involvement of the Guardi-
an in these appellate proceedings. 
The Role of a Guardian Ad Litem In Child Cus-
tody Appellate Proceedings 
(4115)(6) The universally recognized function of a 
guardian ad litem in a custody dispute is to protect 
the best interests of children. Litigation involving 
custody issues can be particularly acrimonious and. 
unfortunately, children are particularly vulnerable 
to the harms commonly associated with hostility 
and conflict between parents. Guardians ad litem 
Page 7 of 11 
Page 6 
serve an important role, under limited circum-
stances, by acting as representatives of children and 
promoting society's interest in protecting children 
from the traumas commonly associated with di-
vorce and custody disputes. See Scaringe v. liar. 
rick. 711 p2d 204 (Fla. 2d DCA 1998); Repres-
enting C ildren: Standards For Attorneys and 
Guardians Ad them In Custody or Visitation Pro-
ceedings (With Commentary), 13 J. Am. Acad. 
Matrim. Lew. 1 (Summer 1995). 
(7] Once appointed, the powers and authority of a 
guardian ad litem include investigation, discovery 
matters, requesting necessary examinations of the 
parties or the child. obtaining impartial examina-
tions and making recommendations to the court. 
Sees 61.403 Fla. Stat. (1997). However, the duties 
and responsibilities of a guardian ad !item are not 
coextensive with those of an attorney. See Roski v. 
Roskl, 730 ..2d 413 (Fla. 2d DCA 1999); see also 
Representing Children.. Standards For Attorneys 
and Guardians Ad them In Custody or Visitation 
Proceedings (With Commentary), 13 J. Am. Acad. 
Matrim. Law. I (Summer 1995)(a guardian ad !item 
who is also an attorney should not combine the 
roles of counsel and guardian; Standard 3.1). In 
fact, Section 61.401, Florida Statutes (1997) spe-
cifically provides that the role of a guardian ad 
litem is "to act as next friend of the child, investig-
ator or evaluator, not as attorney or advocate." See 
also,§ 61.403 Fla. Stat. (1997). 
And I 
we come to the crux of our concerns in 
these proceedings. Section 61.401 states that the 
guardian shall not act as an advocate and the 
Guardian's role is defined as limited to the specific 
litigation in which the Guardian is appointed. See 
Roski v. Roski, 730 I.2d at 413; Black's Law Dic-
tionary 70 (6th ed.1990). Section 61.403 delineates 
the Guardian's powers and authority in the context 
of trial court proceedings. Nowhere is there any ref-
erence to appellate court proceedings in the statutes 
pertaining to the responsibilities of guardians ad 
FN7. The Former Husband contends that 
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EFTA00231333

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769
.2d 389 j _24 Fla. L. Weekly 132439 
M.
(Cite as: 769 
2d 389) 
Section 
61.401 
should 
be 
interpreted 
broadly as permitting guardians ad them to 
participate in appellate proceedings, be-
cause this Section states the guardian 
"shall be a party to any judicial proceed-
ing." We disagree for the reasons dis-
cussed throughout this opinion, and based 
upon our conclusion that the statute's refer-
ence to the guardian's status as a party in 
judicial proceedings, refers to the trial 
court proceedings in which the guardian 
was appointed. Our interpretation is con-
sistent with the prohibition against guardi-
an's acting as advocates contained within 
this very same section, and with common 
sense. 
(8) An appellate court is not a fact-finding court 
and there is simply no proper role for a Guardian at 
the appellate level. The Guardian fulfilled her stat-
utorily defined duty when she completed her invest-
igation and report to the trial court-the court in 
which she was appointed.ra 
FN8. We note that the Guardian's report is 
part of the appellate record and is at the 
disposal of both the Former Husband and 
the Former Wife in this proceeding. 
(9)(10) When attorneys are appointed to serve as 
guardians ad litem, their roles in the litigation pro-
cess are significantly different than the roles they 
would otherwise assume as lawyers. Guardians ad 
litem are required to act in the best interestss394 of 
children even if this conflicts with the children's 
wishes, and must serve as independent fact invest-
igators. The filing of motions and a brief by the 
Guardian in appellate proceedings conflicts with 
these functions, and violates the statutory prohibi-
tion against Guardians acting as advocates. See§ 
1.403 Fla. Stat. (1997); Scaringe v. Herrick, 711 
Eld at 204. Simply, the Guardian does not have a 
statutory right to appear in these proceedings. See 
Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406, 410 
(1998)." 
Page 8 of II 
Page 7 
FN9. Although Betz involved the role of 
the guardian Id litem at the trial court 
level, we find many of the observations 
made by the court as to the proper function 
of the guardian relevant to our analysis. 
The Betz court noted that the primary func-
tion of a guardian is to provide the ap-
pointing court with necessary information 
by way of admissible evidence. 
The court further cautioned that: "A 
guardian ad litem may be an attorney, 
but an attorney who performs the func-
tions of a guardian ad litem does not act 
as an attorney and is not to participate in 
the trial in an adversarial fashion such as 
calling or examining witnesses or filing 
pleadings or briefs." Betz v. Betz. 575 
N.W.2d at 409 (emphasis added). For 
purposes of this decision, we agree with 
Betz that it is improper for a guardian ad 
litem to file a brief in an appellate pro-
ceeding. Such participation on appeal vi-
olates the proscription against a guardian 
ad litem assuming the role of an advoc-
ate, and exceeds the bounds of the 
guardian's limited duties toward the ap-
pointing trial court. 
The Guardian is further prohibited from appearing 
in these proceedings because she is not a proper 
party under Rule 9.020, Florida Rules of Appellate 
Procedure. It is well established that only parties 
(or their representatives) who have suffered an ad-
verse affect in the lower tribunal cause of action are 
entitled to participate in an appeal. See Sias v. 
Fosada, 760 M.2d 954 (Fla. 3d DCA 1999); Or-
ange County, Fla. 
Game and Fresh Water Fish 
Commission, 397 
.2d 411 (Fla. 5th DCA 1981); 
Florida Civil Practice Guide, Vol. 6, § 143.03 
(Lexis Publishing 1998). 
(Ill Rule 9.020 defines the "parties" to an appeal 
as the "appellant" and the "appellee." Neither the 
Former Husband nor the Former Wife sought relief 
against the children. Further, minor children in a 
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Page 9 of 1 
769 I 
2d 389 
769 
.2d 389d4 Fla. L. Weekly D2439 
(Cite as: 769 M.2d 389) 
custody 
proceeding 
are 
not 
considered 
as 
"necessary arties" to the action. See Shienvold v. 
liable, 622 e2d 538 (Fla. 4th DCA 1993). There-
fore, it is manifestly obvious that the minor chil-
dren in this case are not "parties" to this proceed-
ing, and thus the Guardian cannot appear on their 
behalf. 
1121 We are also disturbed by the Guardian's reten-
tion of an attorney to represent the Guardian in the 
appellate proceedings. As noted earlier, on the same 
day the Guardian filed her notice of appearance "on 
behalf of the children," an attorney fled a notice of 
appearance "on behalf of the Guardian." However, 
this attorney had never been appointed by any court 
to serve in any capacity in this case. There is no au-
thority permitting a Guardian to retain counsel on 
behalf of herself in an appeal, where the Guardian 
is not a party to the proceedings, and where the 
Guardian is purportedly appearing on behalf of 
children who are also not parties in the appellate 
proceedings. See generally Betz v. Bert 254 Neb. 
341, 575 N.W.2d 406, 410 (1998)(a guardian who 
feels the need to retain an attorney should apply to 
the appointing court for permission). 
In conclusion, there is no authority for a Guardian, 
or an attorney purportedly representing a Guardian, 
to submit motions or a brief in a child custody ap-
peal."e° Guardians*39S render an important ser-
vice to the courts of this state, and we recognize 
that the lines separating the functions of an attorney 
as Guardian and an attorney as advocate, can be-
come easily blurred. We hope the line has now be-
come more distinct. 
FNIO. Nothing in this opinion shall be 
construed as affecting the role of a Guardi-
an in other types of cases, or in the obvious 
situation where a child is the real party in-
terest. See generally, S.A.P. v. Stare. Delft 
igL Health and Rehabilitative Servs., 704 
.24 583, 585 (Fla. 1st DCA I997)(minor 
may not bring action on her own behalf, 
and can only sue by and through a guardi-
an ad litem, next friend or other duly ap-
Page 8 
pointed re 
sentative); Kingsley v. Kings-
ley, 623 
.2d 780, 784 (Fla. 5th DCA 
1993)(guardian ad liters or next friend is 
required to represent a minor in a termina-
tion (,parental rights case), review denied, 
634 
.2d 625 (Fia.1994);Fla. R. Civ. P., 
Rule I.210(b) (minors do not have legal 
capacity to initiate legal proceedings in 
their own names). 
The Former Wife's motion is granted. The motions 
filed by the Guardian are stricken, and the Guardi-
an, as well as counsel appearing on behalf of the 
Guardian, are prohibited from filing an appellate 
brief as a party in these proceedings"" 
Pill. The Guardian's motion for leave to 
file an amicus curiae brief pursuant to 
Florida Rule of Appellate Procedure 9.370 
is granted. The Guardian is permitted to 
file an amicus curiae brief only. 
Motion to prohibit granted. 
SHEVIN, Judge, concurs.SORONDO, J. (specially 
concurring). 
I agree with the majority that the guardian ad litem 
does not have standing to file a brief in this case. I 
write separately because I arrive at the same con-
clusion through a somewhat different analysis. 
Deborah Perez (the mother), argues that the stat-
ute's mandate that the guardian "act as next friend 
of the child, investigator or evaluator, not as attor-
ney or advocate," in section 61.401, Florida Stat-
utes (1997), precludes the guardian from taking a 
position in this appeal because the guardian's argu-
ments will place her in the role of advocate.ne2
The mother further argues that the appointment of 
the guardian by the lower court does not authorize 
her to file pleadings in this Court. 
FN12. Needless to say, the guardian's posi-
tion in this case is contrary to that of the 
mother. 
Jorge M. Perez (the father), responds that the stat-
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Page 10 of 11 
769,.2d 389 
769
.2d 389,24 Fla. L. Weekly D2439 
.
(Cite as: 769 
.2d 389) 
ute is ambiguous because although it sets forth the 
language cited above, the statute also makes the 
guardian a "party." This elevates the guardian to 
the same level as the other, parties in the case, the 
father and the mother. As such the guardian has the 
right to file pleadings with this Court in furtherance 
of the best interest of the children. 
When first passed by the Florida Legislature, sec-
tion 61.401 Florida Statutes (Supp.1990), as pertin-
ent here, read as follows: 
Appointment of guardian ad litem.-In an action for 
dissolution of marriage, modification, parental re-
sponsibility, custody, or visitation, if the court finds 
it is in the best interest of the child, the court may 
appoint a guardian ad litem to represent the child. 
As relevant to the issues before us, section 61.401 
Florida Statutes (Supp.1990), stated: 
Guardians ad litem; powers and authority.-A guard-
ian ad litem when appointed shall act as a repres-
entative of the child and shall act In the child's best 
interest. 
In 1994, the Legislature amended both statutes. 
Section 61.401 was amended to read: 
Appointment of guardian ad litem.-In an action for 
dissolution of marriage, modification, parental re-
sponsibility, custody, or visitation, if the court finds 
it is in the best interest of the child, the court may 
appoint a guardian ad them to act as next friend of 
the child, investigator or evaluator, not as attorney 
or advocate. The court in its discretion may also 
appoint legal counsel for the child to act as attor-
ney or advocate; however, the guardian and the 
legal counsel shall not be the same person. ...The 
guardian ad !item shall be a party to any Judicial 
proceeding from the date of the appointment until 
the date of discharge. 
Ch. 94-204, § 3. Laws of Ha. (amending § 61.401, 
Ha. Stat. (1993))(emphasis added).*396 Section 
61.403, as pertinent here, was also amended: 
Gu 
ians ad litem; powers and authority. A guard-
ian 
litem when appointed shall act as nest friend 
Page 9 
of the child, investigator or evaluator, not as attor-
ney or advocate but shall act in the child's best in-
terest. 
Ch. 94-204, § 5, Laws of Fla. (amending § 61.401, 
Fla. Stat. (1993)) (emphasis added). 
In 1994, the legislature excised all language con-
cerning the "representation" of the child, and in-
cluded language specifically stating that the guardi-
an was not to act as "attorney or advocate." The 
amended statute went on to provide that the trial 
court could appoint counsel for the child to serve 
that function. The legislature clearly intended that 
the function of the guardian be one of "next friend" 
to the child. This role includes the power to invest-
igate and evaluate the case, and to make recom-
mendations to the trial judge which are consistent 
with the best interest of the child. See§ 61.403(5), 
(8), Ha. Stat. (1997). In short, the guardian's role is 
to discover, analyze and communicate facts to the 
judge which will assist the trial court in the per-
formance of its duty to determine the best interest 
of children in divorce proceedings. The role of ad-
vocate for the child, the legislature reserved for 
counsel, which the court can appoint if it considers 
appropriate and necessary. The trial judge in this 
case did not appoint counsel. 
The father's argument that the guardian's elevation 
to the status of "party" gives her the right to file 
pleadings in this Court is unpersuasive. First, it is 
clear that the guardian is not a party to this action in 
the strict and acknowledged sense of the word. In 
defining the word, Black's Law Dictionary 1122 
(6th ed.1990) states: 
"Party" is a technical word having a precise mean-
ing in the legal parlance; it refers to those by or 
against whom a legal suit is brought, whether in 
law or equity, the party plaintiff or defendant, 
whether composed of one or more individuals and 
whether natural or legal persons; all others who 
may be affected by the suit, indirectly or con-
sequently, are persons interested but not parties. 
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Page 11 of 11 
769 t.d 
389 
769 
2d 389
 Fla. L. Weekly D2439 
(Cite as: 76962d 389) 
See also59 Am.Jur.2d Parties § 7 (1987)(The word 
party or parties "designates the opposing litigants in 
a judicial proceeding-the persons seeking to estab-
lish a right and those upon whom it is sought to im-
pose a corresponding duty or liability ..."). Under 
this definition the guardian in this case is not a 
party. Accordingly, the guardian is a "party" in this 
judicial proceeding only because the legislature has 
made ha such. Because this status is created by 
statute it can be defined by statute, and the statutes 
in question do just that. The legislature first chose 
to limit the guardian's role as a "party" by forbid-
ding her from acting in a certain way, i.e. as an ad-
vocate for the child. Next, in section 61.403(2), (3), 
and (6), the legislature required the guardian to pe-
tition the court and file pleadiass only through 
counsel-a "true" party could do 
pro se. Finally, 
the guardian does not become a party at the incep-
tion of the litigation or because she has a personal 
interest, she attains that status by judicial appoint-
ment and retains her identity as such only until dis-
charged by the judge. Thus, although the legislature 
has created this special class of "party," it has also 
defined its limitations. As 1 read the statute, the 
guardian does not have a partys right to file plead-
ings in this Court because this will, mandatorily, re-
quire her to become an advocate. 
The majority correctly observes that there is no role 
for the guardian to play in this Court because all 
factual issues and determinations have been fully 
developed below. This Court is in a position to read 
the record of the lower court, which contains all of 
the guardian's contributions to this lawsuit. A brief 
review of that record indicates that the guardian's 
position is the same as that of the father in this case 
and has been repeatedly and zealously expressed in 
both the lower court and this *397 Court. Indeed, 
the father relies heavily on the recommendations of 
the guardian. The guardian's presence in this appel-
late proceeding is therefore superfluous. 
I do acknowledge that in certain cases the guardian 
may serve a valuable role on appeal. Usually, the 
guardian's recommendations will bolster the legal 
Page 10 
position of one of the parents. There are extraordin-
ary cases, however, where the guardian's conclu-
sions could be detrimental to both parents. I refer 
specifically to cases which contain issues concern-
ing the parents' mental and emotional stability and 
cases involving domestic violence and/or child ab-
use. In such cases, a guardian could recommend 
that neither parent be awarded custody or that cus-
tody should be predicated upon a particular parent's 
participation in some type of psychological coun-
seling. These cases may call for a guardian to file a 
brief in an appeal and this Court has the authority, 
which the majority has chosen to exercise in this 
case, to allow the guardian to appear as amicus 
curiae pursuant to rule 9.370 of the Florida Rules of 
Appellate Procedure."'" I do not believe that this 
appeal calls for the guardian's participation. 
FN13. Even under these circumstances the 
guardian must seek leave of court to hire 
counsel. I join the majority in its conclu-
sion that the guardian's sua sponte decision 
to hire counsel in this case, presumably at 
the expense of the parties, was highly im-
proper. 
Flail. 3 Dist.,1999. 
Pere 
. Perez 
769 
.2d 389, 24 Fla. L. Weekly D2439 
END OF DOCUMENT 
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EFTA00231337

g 
I 
2 
16 
EFTA00231338

IN THE CIRCUIT COURT OF THE FIFTEENTH 
JUDICIAL CIRCUIT, IN AND FOR PALM BEACH 
COUNTY, FLORIDA 
CRIMINAL DIVISION "W" 
CASE NO. 502008CF009381AXXMB 
502006CF009454AXXMB 
STATE OF FLORIDA, 
vs. 
JEFFREY EPSTEIN, 
Defendant 
ORDER 
THIS MATTER came before the Court on the following: 
a) 
Non-party M.'s Motion to Vacate Order Sealing Records and Unseal 
Records 
b) 
Palm Beach Post's Motions to Intervene and Petition for Access 
c) 
B.B.'s Motions to Intervene and for an Order to Unseal Records 
d) 
Jeffrey Epstein's Motion to Make Court Records Confidential 
A hearing was conducted on these matters on June 25, 2009. The Court notes that 
Mr. Goldberger, Esq. and Mr. Critton, Esq. were present on behalf of Jeffrey Epstein. Ms. 
Shullman, Esq. was present on behalf of the Palm Beach Post, Mr. Berger, Esq. and Mr. 
Edwards, Esq. were present on behalf of M., Mr. Kuvin, Esq. was present on behalf of M., 
Assistant State Attorney Barbara Burns was present-on behalf-of-the State of Florida; -No 
appearance was filed on behalf of the United States. After giving an opportunity for all 
parties to be heard, the Court finds as follows: 
EFTA00231339

Page Two 
Case No. 502008CF009381/0C<MB/502006CF009454AXXMB 
1. 
The State of Florida charged the Defendant, Jeffrey Epstein, with Felony 
Solicitation of Prostitution. 
2. 
The State of Florida and Mr. Epstein came to a negotiated resolution of the 
charges. Part of that resolution included an agreement entered into 
between Mr. Epstein and the United States. At the plea conference in 
State court Mr. Epstein plead guilty to the State charges. At the plea 
conference the agreement between Mr. Epstein and the United States were 
made part of this Court's record. The agreement was sealed in two 
separate filings. At the time the State court took these matters under seal, 
the proper procedure for sealing such documents had not been followed. 
The June 25th hearing was to give Mr. Epstein, the State, and/or the 
United States an opportunity to comply with the well-defined and narrow 
parameters for sealing such documents. After hearing argument of 
counsel, the Court makes the following findings and rulings: 
1) 
Neither the State of Florida nor the U.S. Government nor Mr. Epstein have 
presented sufficient evidence to warrant the sealing of documents 
currently held by the Court. 
 
2) 
The Motions to_seal the Court records are-denied. 
3) 
The Motions to intervene are granted. 
4) 
The Motion to unseal the documents is granted. 
EFTA00231340

Page Three 
Case No. 502008CF009381AXXMB/502006CF009454AXXMB 
5) 
The originals will not be disclosed, however the undersigned will do an in-
camera inspection and redact the names of the underage victims, if any, 
I their identity will be indicated by their initials. 
6) 
This Order is in no way to be interpreted as permission to not comply with 
U.S. District Court Kenneth Marra's previous Orders. 
7) 
The disclosure of the sealed documents shall be stayed at least until June 
26, 2009, at 9:00 a.m., at which time the Court will hear "Epstein's Motion 
to Stay Disclosure of Non-Prosecution Agreement and Addendum Pending 
Review". 
DONE AND ORDERED in West Palm Beach, Palm Bea 
ounty, Florida this 
day of June, 2009. 
Copies furnished: 
R. Alexander Acosta, U.S. Attonal.fice - Southern District 
500 South Australian Avenue, 
West Palm Beach, FL 33401 
Barbara Burns, Esq., State Attorney's Office 
401 North Dixie Highway 
West Palm Beach, FL 33401 
William J. Berger, Esq. 
Bradley 1. Edwards, Esq. 
Rothstein Rosenfeldt Adler 
401 East Las Olas Boulevard., Suite 1650 
Ft. Lauderdale, FL 33394 
Robert D. Critton, Esq. 
Burman, Critton, Luttier & Coleman 
515 North Flagler Drive, 
West Palm Beach, FL 33401 
EFTA00231341

Page Four 
Case No. S02008CF009381AXXMB/502006CF0094S4AXXMB 
Jack A. Goldberger, Esq. 
Atterbury, Goldberger & Weiss, P.A. 
250 Australian Avenue South, Suite 1400 
West Palm Beach, FL 33401 
Spencer T. Kuvin, Esq. 
Leopold-Kuvin, P.A. 
2925 PGA Boulevard, Suite 200 
Palm Beach Gardens, FL 33410 
Deanna K. Shullman, Esq. 
P. O. Box 2602 
Tampa, FL 33602 
EFTA00231342

17 
EFTA00231343

IN THE CIRCUIT COURT OF THE FIFTEENTH 
JUDICIAL CIRCUIT, IN AND FOR PALM BEACH 
COUNTY, FLORIDA 
_ __ ___ 
_ .. CRIMINAL DIVISION1Yr_ .. 
CASE NO. 502008CF009381AXXMB 
502006CF009454A)C<MB 
STATE OF FLORIDA, 
vs. 
JEFFREY EPSTEIN, 
Defendant 
ORDER DENYING MOTION TO STAY DISCLOSURE AGREEMENT 
THIS MATTER came before the Court at a hearing on June 26, 2009, on Jeffrey 
Epstein's Motion to Stay the Disclosure of the Non-Prosecutionl.Aieement and the Addendum 
thereto. The Court notes the parties were present and represented by counsel. Based upori 
argument, it is 
ORDERED AND ADJUDGED that 
1. 
The Motion to Stay is denied. 
2. 
The Clerk of Court shall make the documents available for disclosure at 
noon on Thursday, July 2, 2009. It Is the intent of the Court to give the 
Defendant, Mr. Epstein, and his attorney an opportunity to have this 
Court's orders reviewed by the 4th DCA. If the Clerk gets no direction front 
the Appellate Court, she shall disclose the documents on the date referred 
 
to-above. 
DONE AND ORDERED in West Palm Beach, Palm BeachsiCGoNuZ,Zi ldr aE tp
ED ~tND 
JUN 2 6 2009
his
day of June, 2009. 
JEFFREY J. CO allEFFREY1 COMM 
Circuit Court Judge 
EFTA00231344

Page Two 
Case No. 502008CF009381AAMB/502006CF009454A)0(MB 
Order Denying Motion to Stay Disclosure Aoreernent 
Copies furnished: 
R. Alexander Acosta, U.S. Attorri,rice - Southern District 
500 South Australian Avenue, 
West Palm Beach, FL 33401 
Barbara Burns, Esq., State Attorney's Office 
401 North Dixie Highway 
West Palm Beach, FL 33401 
William J. Berger, Esq. 
Bradley J. Edwards, Esq. 
Rothstein Rosenfeldt Adler 
401 East Las Olas Boulevard., Suite 1650 
Ft. Lauderdale, FL 33394 
Robert D. Critton, Esq. 
Burman, Critton, Luther & Coleman 
515 North Flagler Drive, 
West Palm Beach, FL 33401 
Jack A. Goldberger, Esq. 
Atterbury, Goldberger & Weiss, P.A. 
250 Australian Avenue South, Suite 1400 
West Palm Beach, FL 33401 
Spencer T. Kuvin, Esq. 
Leopold-Kuvin, P.A. 
2925 PGA Boulevard, Suite 200 
Palm Beach Gardens, FL 33410 
Deanna K. Shullman, Esq. 
P. O. Box 2602 
Tampa, FL 33602 
1 
EFTA00231345