Posted by Nydia Streets of Streets Law in Florida Child Custody
A parent who is personally served with a petition for child custody in Florida and fails to respond to the petition on time may have a default judgment entered against him or her. This means the court will enter a judgment in the parent’s absence. This judgment may not be favorable to the absent parent. This was an issue in the case Salazar v. Dominguez, 2D22-684 (Fla. 2d DCA November 16, 2022) in which the mother went from having majority time-sharing with her child to being ordered to have time-sharing every other weekend and holidays after the father’s petition for modification of time-sharing was granted based on a default judgment entered against the mother.
In the parties’ original paternity action, the mother was granted majority time-sharing with the parties’ child. Several years later, the father filed a petition for modification, alleging a substantial change in circumstances which included him having a stable residence and employment. He requested majority time-sharing. The mother filed a response denying modification was in the child’s best interest. The father requested leave to amend his petition which was granted. Before the mother filed an answer to the amended petition, her counsel withdrew and she never filed the answer. A default was then entered against her and a hearing proceeded without her presence. After a final judgment was entered granting the father majority time-sharing, the mother moved for re-hearing, arguing she never received notice to appear or court, nor was she aware she had to answer the petition. The trial court denied the motion and she appealed.
The appellate court reversed, holding “We need not delve into the merits of [the mother’s] due process argument. See Shewmaker v. Shewmaker, 283 So. 3d 894, 895 (Fla. 2d DCA 2019). Rather, we rely upon the seemingly undisputed fact that the trial court based its child custody determination upon [the mother’s] procedural default. This was error. Florida law is clear: ‘child custody cannot be decided on the basis of a default.’ D.M.M. v. J.M.M., 63 So. 3d 910, 912 (Fla. 2d DCA 2011). ‘It has long been the rule in Florida that child custody should be decided based on the best interests of the children, not based on the default of one of the parents.’ Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998).”
The court also noted “We stress, however, that in matters affecting the child's best interests, parties have no ‘license to abuse the judicial system.’ Jeffers v. McLeary, 118 So. 3d 287, 289 (Fla. 4th DCA 2013). A per se rule ‘compelling an automatic reversal of a final judgment . . . simply because a parent failed to appear at a final hearing would lead to all kinds of strategic game-playing and cause delay in the resolution of custody cases. This would be contrary to the best interest[s] of the child.’ Id. at 289-90 (quoting Denker v. Denker, 60 So. 3d 1104, 1107 (Fla. 4th DCA 2011)). Notably, our record does not reflect that [the mother] abused the judicial system or engaged in legal brinksmanship. Instead, she diligently attempted to undo the Final Judgment of Modification.”
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