Posted by Nydia Streets of Streets Law in Florida Paternity

Due process in a Florida paternity case requires that both parties have adequate notice of what will happen at a hearing. For example, a hearing that is noticed as non-evidentiary which turns into an evidentiary hearing is normally not proper. This was an issue in the case Perez v. Maldonado, 3D21-767 (Fla. 3d DCA July 21, 2021).

In this case, putative father filed a paternity action to establish his parental rights and time-sharing. The mother responded by filing a motion to dismiss, claiming that the putative father operated as a sperm donor. She cited the fact that the child was conceived via in vitro fertilization (IVF). The court scheduled a 30-minute hearing on the mother’s motion to dismiss. Although the hearing was scheduled as non-evidentiary, the court requested that the mother’s counsel get her on the phone for the hearing. The court then took testimony from both parties and reviewed the IVF contract, and concluded the putative father should have parental rights. Therefore the court denied the motion to dismiss and awarded the putative father parental rights.

It was noted that “Although Perez made no formal objection to the trial court conducting an evidentiary hearing without notice, Perez’s counsel stated that the hearing on the motion to dismiss was intended to be non-evidentiary and requested a separate hearing to determine whether the parties were a commissioning couple.” Subsequently, the court at a separate hearing, granted the putative father temporary time-sharing over the mother’s objection. The mother appealed, arguing it was error for the trial court to award the putative father time-sharing after a non-evidentiary hearing on a motion to dismiss, and that this was a violation of her due process rights.

The appellate court reviewed the time-sharing order under an abuse of discretion standard. The court held “We agree that the trial court violated due process because it did not provide [the mother] with notice of an evidentiary hearing and a meaningful opportunity to be heard. The trial court went beyond simply testing the legal sufficiency of [the father’s] petition and impermissibly determined that [the father] and [the mother] were a commissioning couple under section 742.14, Florida Statutes (2020), a conclusion that would have required taking evidence in a properly noticed evidentiary hearing.” Because the mother was not given the opportunity to present evidence and witnesses, the appellate court concluded she did not have a full and fair opportunity to be heard on the issue of whether or not the parties were a commissioning couple under Florida law.

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