Posted by Nydia Streets of Streets Law in Florida Child Custody

When a party is not given the chance to cross examine witnesses or present a defense to accusations against them in a Florida family law case, this may be a violation of the party’s due process rights. Due process is generally defined as fairness. In order for justice to prevail, the process should be fair. This was an issue in the case Orozco v. Rodriguez-Amadeo, 3D20-0473 (Fla. 3d DCA June 2, 2021).

In a pending divorce case, the husband filed an emergency motion to suspend the wife’s time-sharing, alleging the wife was interfering with reunification efforts between the husband and the parties’ child. On the same day, the wife’s counsel filed a motion to withdraw, and the next day an order was signed granting the withdrawal and directing the wife to hire new counsel within 30 days or advise that she was representing herself. Less than two weeks later, the court held a hearing on the husband’s emergency hearing.

At the hearing, the husband presented the testimony of multiple witnesses. The wife appeared without a lawyer. Although the wife advised she had witnesses waiting outside the courtroom, she was not permitted to allow them to testify. She was also stopped from cross-examining the husband’s witnesses. The court ultimately entered an order granting sole parental responsibility to the husband, and altered the parties’ time-sharing temporarily. The wife appealed.

The appellate court agreed with the wife that she was deprived of due process because the court did not allow her to present her own witnesses or rebut the evidence presented by the husband. The court held “While it is true that courts may ‘enter a temporary modification of timesharing without holding a full hearing . . . such circumstances are typically limited to cases, for example, where there is a risk of physical harm to the child or where the child is about to be improperly removed from the state.’ Munoz, 253 So. 3d at 89. Here, despite the caption of the husband’s motion, ‘there are no allegations of an emergency that would justify violating the [wife’s] due process rights.’”

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