Posted by Nydia Streets of Streets Law in Florida Child Custody

Child custody issues in Florida generally cannot be decided by default. This is because the best interest of the child is the paramount concern, and granting one parent custody rights over the other without allowing the other parent the chance to present evidence concerning the best interest of the child may be detrimental. A default is entered when a party fails to timely respond to a petition. A default means the party who failed to respond admits the allegations made by the other party. This was an issue in the case Corridon v. Corridon, 3D20-0596 (Fla. 3d DCA February 17, 2021).

By the time a petition for divorce was filed, the parties had a five-year-old child. The child lived in Florida with the former husband’s relatives. The former husband lived in Illinois. The former wife filed her petition in Florida, seeking sole parental responsibility and custody of the parties’ child. The former husband was served by a sheriff in Illinois and the former wife filed proof of service with the Florida court. The former husband did not respond to the petition and by default a final judgment was entered granting the former wife sole custody of the parties’ child, adopting a marital settlement agreement signed and filed by the wife, and reserving on child support. The former husband appealed, arguing there was no proof of valid service on him because the proof of service filed with the court did not indicate the time of day he was served.

Addressing the former husband’s argument, the appellate court stated “We note the recent change to section 48.194, Florida Statutes, which was in effect before service on the former husband occurred. The amended statute removes the requirement that out of state return of service forms include the ‘time, manner, and place of service’ and allows a trial court to ‘consider the return-of-service form described in [section] 48.21, or any other competent evidence in determining whether service has been properly made.’ § 48.194(1), Fla. Stat. (2020). The plain meaning of the amended statute removes the time of day requirement for out of state return of service forms and allows the trial court to consider any competent evidence to prove service was proper.” Therefore, the court found that the trial court properly exercised personal jurisdiction over the former husband and that there was no defect in service.

Next although not argued or requested by the former husband, the appellate court felt compelled to reverse the award of sole custody to the former wife. The Court held “‘[I]t is well-settled in Florida that where, as here, a divorcing couple has a minor child, a court cannot enter a default final judgment without allowing the defaulting parent an opportunity to present evidence on issues related to the child . . .’. [internal citation omitted]. This is because ‘the 'best interest of the child' standard precludes a determination of child custody based on a parent's default.’” (internal citations omitted).

If you are facing a Florida child custody case, schedule a consultation with a Miami family law attorney to understand the best way to proceed. A consultation can guide you in the right direction.