Posted by Nydia Streets of Streets Law in Florida Child Custody
An emergency suspension of timesharing in a Florida child custody case may occur in certain cases. But regard must be given to due process considerations. Emergency suspension of time-sharing was an issue in the case Ramirez v. Marzano, 4D2023-1170 (Fla. 4th DCA April 3, 2024).
The father filed a motion for contempt alleging the mother was violating an order compelling the mother to take the child to school on her time-sharing days unless the child was sick or there was an emergency. At a hearing on the motion, the father raised emergency matters which he admitted he had not discussed with the mother prior to the hearing. The court then urged the parties to go outside of the courtroom and talk to see if they could reach a resolution on the matter because the court could enter ex parte relief on the father’s claims. The court repeatedly advised the father’s lawyer could go back to his office after the hearing and file an ex parte motion which could be granted. The parties were unable to reach an agreement.
Almost two weeks after the hearing, the father filed an emergency ex parte motion about the issues raised at the hearing. He alleged the mother was taking the child to another county during her time-sharing and allowing the child to sleep in a bed with another man. An order was entered granting the father’s motion which suspended the mother’s overnight time-sharing. The order set a non-evidentiary hearing to occur ten days later. At the hearing, the father’s counsel requested that the order be extended 30 more days to allow him to complete investigation on the claims made, while the mother’s counsel argued the order should be vacated. The court responded that it would conduct an evidentiary hearing right then, but the mother’s counsel objected on the basis that it was not noticed as an evidentiary hearing and therefore she was not prepared to put on a case. The court eventually modified the order slightly and instructed the parties to set a hearing through the judicial assistant. The first available date offered was four months away. The mother appealed arguing violation of her due process rights.
The appellate court agreed with the mother. The court first agreed that the matter upon which the father’s motion was based was not an emergency: “Here, the father’s contempt motion based on the mother’s alleged violation of the prior timesharing order, and the father’s arguments at the hearing on his contempt motion, already had put the mother on notice of the grounds upon which he was seeking relief against the mother. Thus, the father did not reasonably show that filing an ex parte emergency motion thirteen days later, based on the same grounds, ‘would actually accelerate, precipitate, or otherwise permit the threatened irreparable injury to occur.’ [internal citation omitted].”
The court continued “Second, after the mother objected to the circuit court having set the return hearing on its non-evidentiary uniform motion calendar, the circuit court was unable to set a properly noticed evidentiary hearing regarding the matters upon which the father had based his ex parte emergency motion until four months later, thus depriving the mother of a prompt opportunity to be heard.” The order was therefore reversed also with instructions for the case to be reassigned to a different judge with the appellate court commenting “Despite the father lacking a basis to file an ex parte emergency motion to obtain the relief which he was seeking against the mother, the circuit court departed from its neutral role by repeatedly suggesting at the initial hearing—on eight separate occasions emphasized above—that the father could, and ultimately should, file such an ex parte emergency motion. The circuit court also appeared to use the possible granting of such an ex parte emergency motion as leverage to cause the mother to discuss resolving the matter by agreement, rather than providing the mother with a prompt opportunity to respond with evidence. Such actions were improper.”
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