Appellate judges signal they see no conflict in Darren Shull keeping a politically connected father’s child custody case

By Noreen Marcus, FloridaBulldog.org

Although state child welfare authorities are still looking into an incident that raises concerns about Judge Darren Shull’s impartiality, his appeals court supervisors seem bent on allowing him to continue making questionable calls unchecked.

On Monday the Fourth District Court of Appeal activated a second order from Shull that tells sheriffs to immediately deliver two kids to their politically connected father. Shull issued the order without giving the mother a chance to protest.

The first time Shull issued this pickup order, the boys ran away from their father’s house and police called in the Department of Children and Families (DCF), which started an ongoing investigation. The DCF’s findings are due by Sept. 13.

“No one in this court is looking out for my boys’ interests, not one person,” said Nanea Marcial. She said her 12- and 15-year-old sons are treated “like Yo-Yos, like objects.”

Shull, head of the family division in Palm Beach Circuit Court, is presiding over the child custody case of Miami-based political consultant David Custin and his ex-wife, Marcial. She’s trying to get court approval to relocate their sons to New Hampshire, where she moved last year for work.

Along with contesting relocation, Custin is trying to change the terms of their 2012 parenting plan so he becomes the custodial parent and Marcial is limited to visitation. Given that Shull ruled against relocation, Marcial can only hope that he or another judge will reconsider and grant her request.

CONSULTANT TO DESANTIS, NUNEZ

Among Custin’s clients are Republican stars Lt. Gov. Jeanette Nunez and Gov. Ron DeSantis, who appointed Shull to Palm Beach Circuit Court in April 2022. Two months later, a judicial reshuffling and a request from Palm Beach Chief Judge Glenn Kelley put the Custin case on Shull’s docket.

The case is pending in Broward, where Marcial used to live. But in a highly unusual move, Custin’s lawyers got the entire Broward Circuit Court bench excluded on the basis that Custin feared none of those judges would treat him fairly. Then the case was reassigned to judges in Palm Beach Circuit Court.

Custin asserts – and Marcial disputes – she’s illegally keeping their sons away from him. After his lawyers convinced Shull to issue the first pick-up order to transport the boys to Custin, Marcial and her brother drove them to his Kendall home on July 8.

Within hours they ran away; the next day police found and returned them to Marcial and called in DCF. Custin accused Marcial of manipulating their sons to make him look bad.

Marcial has been alleging abuse for three years. (Marcial gave Florida Bulldog access to confidential court documents but the website isn’t publishing details of the claims to protect the parties’ and minors’ privacy.)

Custin and his lawyer, Stacey Mullins, did not respond to a Florida Bulldog email seeking comment.

4TH DCA JUGGLES SHULL ORDER

To fulfill his duties under state law, apparently Shull should have held a hearing with both parties present to examine the abuse claim. If he determined it was “well-founded,” he was obligated to appoint a guardian to protect the minors’ interests.

But Shull refused to appoint a guardian and didn’t probe the abuse issue in a hearing after Marcial requested one. Nor did he let the boys testify, saying he wasn’t convinced they have the requisite “capacity and maturity.”

Last year Marcial’s lawyers asked Shull to recuse himself; when he refused, they asked the 4th DCA to disqualify him. Without explanation Judges Robert Gross, Melanie May and Ed Artau declined to remove Shull from the case in November 2022.

Now the court is considering another Shull disqualification petition from Marcial.

After Shull issued his second pick-up order on Aug. 11, the 4th DCA granted a stay that tabled it until Marcial’s appeal is resolved. Judges Martha Warner and Alan Forst signed the stay order dated Aug. 16. Artau, who had voted against disqualifying Shull in November, dissented.

That may not be surprising because Artau is an outspoken fan of Shull’s. In remarks at his investiture, “Judge Artau described Judge Shull as a man of great character, humility and fortitude,” the news bulletin of the 15th Judicial Circuit reported.

More procedural back and forth occurred over the next 12 days – the stay was on, the stay was off; it was an emergency, it wasn’t an emergency. One could only imagine the behind-the-scenes debates that preceded each order.

Finally, on Monday the stay was lifted by an unsigned “order of the court.” The court acted after taking into account Custin’s response, the terse order states.

Now and for as long as the pick-up order remains in effect, her sons are at risk of being transferred to their father despite their apparent wish to remain with her, Marcial said. “They are scared of going anywhere for fear the police are coming to force them back to their father,” she said.

CUSTIN PULLS AHEAD

The appeals court seems to be heading toward rejecting Marcial’s petition and letting Shull keep the case, according to a family lawyer who’s not involved in the Custin-Marcial matter.

“If the appellate panel has lifted the emergency stay on a pick-up order, it signals a denial of the mother’s petition,” said Margherita Downey, who practices in Palm Beach Circuit Court and the 4th DCA. 

Shull has been listening only to Custin’s depiction of events and responding accordingly, Marcial’s new appellate lawyer, David Scott of Fort Lauderdale, argues in his latest brief.

The Aug. 25 brief says Shull issued his Aug. 11 pick-up order ex parte, meaning without giving Marcial notice or an opportunity to be heard, violating her due process rights. Without even attempting to schedule a hearing, Shull just signed Custin’s proposed order, according to the brief.

Such ex parte orders are legal when they’re necessary to respond to an emergency or an imminent violation of a previous order. Custin claimed that Marcial breached the first pick-up order in July.

Marcial says she complied by taking the boys to Custin’s house the following day. Also, there was no evidence of an emergency. But she never got to say those things in court before Shull issued his Aug. 11 order.

At this point Custin is winning and Marcial is running out of options.

“Judge Shull has violated my boys’ basic Fourth Amendment constitutional right to be free from unreasonable seizure and has inflicted additional mental and emotional harm onto my boys,” she said. “Their physical safety and mental well-being have been completely cast aside.”

“The court has not protected my children,” Marcial said. “As a mother trying to keep her children safe, I’m both infuriated and terrified.”