Posted by Nydia Streets of Streets Law in Florida Child Custody
What happens in a Florida child custody case when the judge’s order grants relief that was not requested by the parties? Due process requires that both parties be put on notice as to what they are expected to defend against in a legal proceeding. So if a party does not request certain relief in his or her petition, the court is generally without power to grant that relief. This was an issue in the case Logreira v. Logreira, 3D21-0919 (Fla. 3d DCA June 2, 2021).
Ten years after their Florida parenting plan was established, both parents filed competing petitions for modification. The father sought enrollment of the children in a therapeutic program, alleging the mother was alienating them from him. In the event the therapeutic intervention was unsuccessful, the father requested increased time-sharing and a downward modification of child support. The mother countered with a petition seeking decreased time-sharing for the father or alternatively enrollment in a family-based reunification program.
After a nine-day trial the court ordered the children to a program outside of the state of Florida. The parties were further ordered to comply with all recommendations of the mental health professionals as part of the program. Shortly thereafter, counsel for the father forwarded a proposed order to the court with a cover letter stating the signing of the order was an emergency because the parties’ oldest child was due to turn 18 and therefore the court would lose jurisdiction to adjudicate claims related to that child. The court, without giving the mother a chance to respond, signed the order. The order contained additional provisions such as sole parental responsibility for the father and seemingly left it up to the professionals involved in the reunification program to determine when the mother’s time-sharing would resume. The mother appealed.
The appellate court agreed that the mother’s due process rights were disregarded since the order signed by the court granted relief not requested by either party in their respective petitions. The court held “While we are cognizant of the considerable amount of time and effort expended by the trial court in the underlying proceedings, the supplemental order was unsolicited by the trial court and dramatically shifted the existing framework of the parties’ parenting plan. Thus, the former wife was entitled to minimal due process protections prior to entry.”
A consultation with a Miami child custody lawyer is an important step in understanding how the law may apply to your case. Schedule a meeting to discuss how to proceed.