EFTA00231917

6.. The documents should remain confidential for the following reasons: 
a. To prevent a serious Imminent threat to the fair, impartial, and orderly 
administration of justice. 
b. To protect a compelling government interest. 
c. To avoid substantial injury to Innocent third parties. 
d. To avoid substantial injury to a party by disclosure of matters protected 
by a common law and privacy right, not generally Inherent In these 
specific type of proceedings, sought to be closed. 
WHEREFORE, Defendant moves this Honorable Court to enter an Order keeping 
the above referenced records confidential, and maintaining them under seal. 
I HEREBY CERTIFY that this motion is made in good faith and supported by a 
sound and factual legal basis. 
4
CK A. GOLDBERGER, ESQ. 
WITNESS my hand and seal in the County and State last aforesaid this 11 day 
of June, 2009. 
AZ
)
-e----
Notary Public State of d 
My Commission Expires 
EFTA00232437

CERTIFICATE OF SERVICE 
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been 
furnished via o U.S. Mail; K Facsimile; a Overnight Delivery to R. Alexander Acosta, 
United States Attorney's Office-Southern District, 500 S. Australian Ave., Suite 400, 
West Palm Beach, FL 33401, Judith Stevenson Areo, Esq., State Attorney's Office-
West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401, William 
J Berger, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Suite 
1650, Fort Lauderdale, FL 33394; Bradley J. Edwards, Esq., ROTHSTEIN ROSENFELDT 
ADLER, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394; Deanna K. 
Shullman, 400 North 
Drive, Suite 1100, P.O.Box 2602 (33601) Tampa, FL 33602, 
Robert D. Critton, BURMAN, CRITTON, LUTTIER, & COLEMAN, 515 N. Flagler Dr. 
Suite 400, West Palm Beach, Florida 33401. this 11 day of June, 2009. 
BURMAN, CRITTON, LUTTIER & COLEMAN ATTERBURY, GOLDBERGER & 
515 N. Flagler Dr. Suite 400 
WEISS, PA. 
ach, Florida 33401 
250 Australian Avenue South 
Suite 1400 
ach, Florida 33401 
-c
4 
-
ERT D. C_,
RITTON ESQ. 
CK A. GOLDBERGER, ESQ 
orida Bar NoME 
lorida Bar No. 
EFTA00232438

I
i 
14 
EFTA00232439

IN THE CIRCUIT COURT OF THE 
FIFTEENTH JUDICIAL CIRCUIT IN 
AND FOR PALM BEACH COUNTY, 
FLORIDA 
CASE NO. 2008CF009381A 
DIVISION W 
STATE OF FLORIDA 
v . 
JEFFREY EPSTEIN, 
Defendant. 
EPSTEIN'S MOTION TO STAY DISCLOSURE OF THE NON-
PROSECUTION AGREEMENT AND ADDENDUM PENDING REVIEW 
Defendant, JEFFREY EPSTEIN ("EPSTEIN"), by and through his undersigned 
counsel and pursuant to Rule 9.310, Florida Rules of Appellate Procedure, moves to stay 
disclosure of the Non-Prosecution Agreement and Addendum (collectively, the "NPA") 
pending review, and states: 
1. 
In the event the Court grants Nonparty M's Motion to Vacate Order 
Sealing Records and Unseal Records, grants Palm Beach Post's Motion to Intervene and 
Petition for Access and/or denies EPSTEIN's Motion to Make Court Records 
Confidential, EPSTEIN moves to stay the disclosure of the NPA pending review by the 
Fourth District Court of Appeals. 
2. 
Rule 9.310(a), Florida Rules of Appellate Procedure, provides in pertinent 
part, "...a party seeking to stay a final or non-final order pending review shall file a 
motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion , to 
grant, modify or deny such relief." 
EFTA00232440

3. 
A stay pending review is warranted under the circumstances because of 
the irreparable harm that would be caused by disclosure of the NPA including, but not 
limited to, substantial injury to a party by disclosing matters protected by common law 
and privacy rights, substantial injury to a compelling government interest, substantial 
injury to innocent third parties and a serious imminent threat to the fair, impartial and 
orderly administration of justice as set forth in the hearing record date June 25, 2009. 
4. 
In /Orator Health Care of Nashville. Inc, v. Baker, 739 So. 2d 608, 609 
(Fla. 1st DCA 1999), defendant Mariner filed a petition for writ of certiorari after the trial 
court compelled it to produce certain incident reports. Mariner also moved for a stay 
pending review pursuant to Fla. R. App. Pro. 9.310. The trial court advised the parties 
that Mariner would be required to submit the incident reports to the court under seal as a 
prerequisite to a stay. Mariner refused to produce the documents under seal and the trial 
court denied the motion for stay and imposed daily fines until the documents were 
produced. Id, The First District Court of Appeals affirmed the trial court's order and 
noted 
Mariner has failed to explain how the production of the 
reports under seal would result in any prejudice. To the 
contrary, the records will be protected from disclosure 
during the entire course of the certiorari proceeding before 
this court. No harm can be done if this court ultimately 
determines that the reports are protected by the work 
product privilege. 
Id. at 610. 
5. 
In the instant case the NPA is already filed under seal. Should the Court 
grant Nonparty ■'s 
Motion to Vacate Order Sealing Records and Unseal Records, 
grant Palm Beach Post's Motion to Intervene and Petition for Access and/or deny 
2 
EFTA00232441

EPSTEIN's Motion to Make Court Records Confidential, EPSTEIN requests the Court 
exercise its discretion under Fla. R. App. Pro. 9.310(a) and enter a stay pending review 
by the 4th DCA. 
6. 
No harm will be done if the NPA remains under seal pending appellate 
review. To the contrary, EPSTEIN will suffer irreparable harm if a stay is not entered 
and the NPA is disclosed to the public. 
WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests that if the 
Court grants Nonparty El's Motion to Vacate Order Sealing Records and Unseal 
Records, grants Palm Beach Post's Motion to Intervene and Petition for Access and/or 
denies EPSTEIN's Motion to Make Court Records Confidential, the Court enter a stay 
pending review and grant any additional relief the Court deems just and proper. 
Certificate of Service 
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been 
furnished by Hand Delivery to JEFFREY SLOMAN, ESQ., United States Attorney's 
Office — Southern District, 500 S. Australian Avenue, Suite 400, West Palm Beach, FL 
33401, JUDITH STEVENSON AREO, ESQ., State Attorney's Office — West Palm 
Beach, 401 North Dixie Highway, West Palm Beach, FL 33401, WILLIAM J. BERGER, 
ESQ., and BRADLEY J. EDWARDS, Rothstein Rosenfeldt Adler, 401 East Las Olas 
Boulevard, Suite 1650, Fort Lauderdale, FL 33394, 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 
Blvd., Suite 200, Palm Beach Gardens, FL 33410, and DEANNA K. SHIJLLMAN, 
3 
EFTA00232442

400 North 
Drive, Suite 1100, P.O. Box 2602 (33601) Tampa, FL 33602, this 25th 
day of June.  2009. 
BURMAN, CRITTON, LUTHER & 
COLEMAN, LLP 
515 N. Flagler Drive, Suite 400 
each, FL 
401 
By: 
Robert D. Cri 
Florida Bar 
Michael J. Pike 
Florida Bart_ 
Counsel for Defendant Jeffrey Epstein) 
and 
on, Jr. 
Jack Alan Goldberger, Esq. 
Atterbury Goldberger & Weiss, P.A. 
250 Australian Avenue South 
Suite 1400 
W 
Pa 
a 
FL 33401-5012 
Fax: 
Counsel for Defendant Jeffrey Epstein 
4 
EFTA00232443

EFTA00232444

IN THE CIRCUIT COURT OF THE 
15TH JUDICIAL CIRCUIT IN AND 
FOR PALM BEACH COUNTY, 
FLORIDA 
CASE NO: 2006CF009454AXX, 
2008CF009381AXX 
STATE, 
vs. 
EPSTEIN, JE'FFREY 
INTERVENER'S 
E 
O u. 0 
T i TAY 
AND UPPORTIN 
COMES NOW, Intervener,.. and files 
s Response 
endant Jeffrey Epstein's 
Motion to Stay, and states: 
In their motion, Defendant asks the Court to stay it 
mg on the production of the NPA 
agreement pending review by the Fourth DCA. Since this NPA was never properly sealed in the 
first place, a Stay is improper because this document is a public record until such time as it has 
been properly sealed. Furthermore, as Defendant EPSTEIN has failed to demonstrate that he is 
likely to succeed on the merits of his appeal or describe how he will be harmed by this 
disclosure, Intervener M. respectfully requests the Court deny their Motion. 
PursuaM to nirida Rule of Appellate Procedure 9.310(a), a trial court has the discretion 
to enter a stay pending interlocutory review of a non-final order. The burden to satisfy the 
EFTA00232445

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(f) (emphasis 
added). 
Defendants ask the Court to stay disclosure of a public document which was never 
properly sealed. Factors to 
'dared by a court when deciding whether to enter a stay 
"include the moving p 
s likeli 
success on the merits, and the likelihood of harm 
should a stay not be gra 
 
 769 So.2d 389, 391 n.4 (Fla. 3d DCA 1999). 
Defendants fail to adequately ad•` s 
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 
ad 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 
procedifie for sealing court documents were ever followed, the NPA is a public record. 
Page 2of 3 
EFTA00232446

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. 
Esq., 250 Australian 
Avenue South, Suite 1400, West Palm Beach, FL 33401; Robert D. Clifton, Jr., Michael J. Pike, 
515 North Flagler Drive, Suit 
est Palm Beach, FL 33401. 
LEOPOLD-KUVIN, P.A. 
2925 PGA Boulevard 
Suite 200 
.
.
.
 
Page 3of 3 
ens, FL 33410 
(facsimile) 
T. KUVIN, Esq. 
ar No.: 
EFTA00232447

Page 2 of 
Wdstlaw. 
769 So.2d 389 
769 So.2d 389.24 Fla. L. Weekly D2439 
(Cite as: 769 So.2d 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, 
held that: (1) 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 Headnotes 
[11 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. 
[2) Appeal and Error 30 C=479(1) 
30 Appeal and Error 
301X Supersedeas or Stay of Proceedings 
30k476 Upon Allowance by Court or Judge 
30k479 Grounds for Allowance 
30k479( I) k. 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(0. 
(3) Child Custody 76D €:=7905 
76D Child Custody 
76DXfli 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 F.S.A. R.App.P.Rule 9.310(0. 
(4] Child Custody 76D sE :, 903 
76D Child Custody 
76DXHI Appeal or Judicial Review 
76Dk903 k. Right of Review and Parties. 
Most Cited Cases 
(Formerly 211kI9.3(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. 
2009 Thomson Reuters/West No Claim to Orig. US Gov. Works. 
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EFTA00232448

Page 3 of 11 
769 So.2d 389 
769 So.2d 389, 24 Fla. L. Weekly D2439 
(Cite as: 769 So.2d 389) 
(5] Infants 211 *:=85 
211 Infants 
211VII Actions 
211k76 Guardian Ad Litem or Next Friend 
211k85 k. Duties and Liabilities. Most. 
Cited Cases 
(Formerly 211k19.2(2)) 
Universally recognized function of guardian ad 
!item in custody dispute is to protect best interests 
of children. 
(6] Infants 2116577 
211 Infants 
211V11 Actions 
211k76 Guardian Ad Litem or Next Friend 
211k77 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. 
(7] Infants 211 re="85 
211 Infants 
211 VII Actions 
211k76 Guardian Ad Litem or Next Friend 
211k85 k. Duties and Liabilities. Most 
Cited Cases 
(Formerly 21Ik19.3(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 sE:=)900 
76D Child Custody 
76DXUI Appeal or Judicial Review 
76Ok900 k. In General. Most Cited Cases 
(Formerly 211k 19.3(6)) 
Child Custody 76D 4C=,903 
76D Child Custody 
Page 2 
76DX1I1 Appeal or Judicial Review 
76Dk903 k. Right of Review and Patties. 
Most Cited Cases 
(Formerly 211k19.3(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 4C=.85 
211 Infants 
211VII Actions 
211k76 Guardian Ad Litem or Next Friend 
21Ik85 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. 
(10] Child Custody 7613 sC=903 
76D Child Custody 
76DXJ1.1 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 litem 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 7613 C=>409 
76D Child Custody 
76DVIII 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 7613 e=•903__ 
 
it 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 
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EFTA00232449

769 So.2d 389 
769 Sold 389,24 Fla. L. Weekly 132439 
(Cite as: 769 Sold 389) 
76D Child Custody 
76DX111 Appeal or Judicial Review 
76Dk903 k. Right of Review and Parties. 
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. Perwin, Miami; Bar-
ranco, Kircher, Vogelsang & BoIdt, and Kimberly 
L. Bolds, Miami, for appellee. 
Before GERSTEN, SHEVIN, and SORONDO, 
ON APPELLANT'S RENEWED MOTION TO PRO-
HIBIT FURTHER INVOLVEMENT IN THESE AP-
PELLATE PROCEEDINGS BY THE GUARDIAN 
.LITEM AND/OR COUNSEL APPEARING ON 
BEHALF OF THE GUARDIAN. 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• 
peal'*" 
FNI. 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 11 
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 18, 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-
O 2009 Thomson Reuters/West. No Claim to Ong. US Gov. Works. 
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EFTA00232450

Page 5 of II 
769 So.2d 389 
769 So.2d 389.24 Fla. L. Weekly D2439 
(Cite as: 769 So.2d 389) 
mein, the children spent the *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.' The 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." 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. 
FN3. 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 
11112113] 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." 
Fb14. This Court has authority to issue a 
stay under Rule 9.310(0, Florida Rules of 
Appellate Procedure, for the purpose of 
preserving the status quo during an appel-
late proceeding. See Hirsch v. Hirsch, 309 
So.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 So.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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EFTA00232451

769 So.2d 389 
769 So.2d 389,24 Fla. L. Weekly D2439 
(Cite as: 769 So.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 preserved. See Offer• 
man v. Offerman, 643 So.2d 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".m3 
Not 
surprisingly, 
the 
Former Husband also filed an emergency motion 
for review of the order granting the stay. *4 On 
August 26, 1999, this Court denied both the Former 
Husband's and the Guardian's motions. 
FNS. 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 Litem." 
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 
panics' 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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769 So.2d 389 
769 So.2d 389, 24 Fla. L. Weekly D2439 
(Cite as: 769 So.2d 389) 
est son. The Former Husband filed a similar motion 
entitled "Father/Appellees 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 lawyer to serve wins." See Sarasota 
County v. Lx, 645 So.2d 7 (Fla. 241 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. For 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 
(4)[5)[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 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 Scorings v. Her. 
rick, 711 So.2d 204 (Fla. 2d DCA 1998); Repres-
enting Children: Standards For Attorneys and 
Guardians Ad 1.1tem In Custody or Visitation Pro-
ceedings (With Commentary), 13 J. Am. Acad. 
Matrim. Law. I (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. 
See 61.403 Fla. Stat. (1997). However, the duties 
and responsibilities of a guardian ad litem are not 
coextensive with those of an attorney. See Roski v. 
Rosk4 730 So.2d 413 (Fla. al DCA 1999); see also 
Representing Children: Standards For Attorneys 
and Guardians Ad Diem In Custody or Visitation 
Proceedings (With Commentary), 13 S. Am. Acad. 
Matrim. Law. 1 (Summer 1995)(a guardian ad litem 
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 so 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 So.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 
FIV7. The Former Husband contends that 
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Section 
61.401 
should 
be 
interpreted 
broadly as permitting guardians ad litem 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.m 
FNS. 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. 
19)(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 interests'394 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§ 
61.403 Fla. Stat. (1997); Scaringe v. Herrick. 711 
So.2d 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 I I 
Page 7 
FN9. Although Betz involved the role of 
the guardian la 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. 
Posada, 760 So.2d 954 (Fla. 3d DCA 1999); Or-
ange County, Fla. v. Game and Fresh Water Fish 
Commission, 397 So.2d 411 (Fla. 5th DCA 1981); 
Florida Civil Practice Guide, Vol. 6, § 143.03 
(Lexis Publishing 1998). 
[II) 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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custody 
proceeding 
are 
not 
considered 
as 
"necessary parties" to the action. See Shienvold v. 
liable. 622 So.2d 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. 
(121 We arc 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 filed 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. Betz. 254 Neb. 
341, 575 N.W.2d 406, 410 (1998Xa 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.noo Guardianss395 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. State. Derr 
of Health and Rehabilitative Servs., 704 
So.2d 583, 585 (Fla. 1st DCA 1997)(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 9 of 11 
Page 8 
pointed representative); Kingsley v. Kings-
ley, 623 So.2d 780, 784 (Fla. 5th DCA 
1993)(guardian ad fitern or next friend is 
required to represent a minor in a termina-
tion of parental rights case), review denied, 
634 So.2d 625 (Fla.1994);Fla. R. Civ. R, 
Rule 1.210(6) (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."'" 
FN11. The Guardian's motion for leave to 
file an amicus curiae brief pursuant to 
Florida Rule of Appellate Procedure 9370 
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 (1991), precludes the guardian from taking a 
position in this appeal because the guardian's argu-
ments will place her in the role of advocate.'"" 
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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769 So.2d 389 
769 So.2d 389.24 Ha. L. Weekly D2439 
(ate as: 769 So.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 !item to represent the child. 
As relevant to the issues before us, section 61.403, 
Florida Statutes (Supp.1990), stated: 
Guardians ad !item; 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 litem 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 litem 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. Slat. (1993))(emphasis added).*396 Section 
61.403, as pertinent here, was also amended: 
Guardians ad litem; powers and authority. A guard-
ian ad [item when appointed shall act as next 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, 
Ha. 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), Fla. 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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