Posted by Nydia Streets of Streets Law in Florida Child Custody

What is an order of referral to a general magistrate in a Florida family law case? This is an order issued by the judge in the case which refers a motion or petition to a general magistrate for a hearing. A general magistrate is what is known as a hearing officer - he or she is not a judge, but presides over a hearing, reviews evidence and testimony, and makes a recommendation to the judge about how to rule on the motion or petition. The judge then ratifies the recommendation if there are no timely objections from either party. An order entered based on a general magistrate’s recommendation was the subject of an appeal in the case Toledano v. Garcia, 3D21-85 (Fla. 3d DCA February 9, 2022).

The parties were originally before the court on a paternity petition filed by the father. After a final judgment was entered, both parties later filed competing petitions to modify child support, and then the mother filed a petition to modify the parenting plan alleging the father was not exercising his time-sharing and showed no interest in the child’s welfare. The parties’ child support petitions were referred to a general magistrate for hearing. After this order of referral was entered, the mother filed her petition to modify the parenting plan. Despite no order of referral being entered on the time-sharing petition, the general magistrate noticed the child support petitions and the time-sharing petition for hearing.

After a hearing on these petitions at which the father was not present, the general magistrate recommended granting the mother’s petitions, as well as her motion for attorney’s fees. The recommendation included giving the mother 100% time-sharing and awarding her sole parental responsibility. The court later entered an order ratifying and adopting the recommendations of the general magistrate. The father filed a motion to strike or set aside the order ratifying the general magistrate’s report, alleging it was improper for the general magistrate to consider the mother’s petition to modify the parenting plan where no order of referral was entered allowing the general magistrate to hear that petition. This motion was denied, and the father appealed.

The appellate court agreed it was improper for the general magistrate to consider the petition for modification of time-sharing when no order of referral had been entered on that petition. The court held “‘Article V of the Florida Constitution vests judicial power exclusively in the courts.’ Lackner v. Cent. Fla. Invs., Inc., 14 So. 3d 1050, 1053 (Fla. 5th DCA 2009). ‘Unlike an Article V judge, a magistrate has no inherent authority but has only the authority permitted by rule.’ Humphrey v. Humphrey, 296 So. 3d 536, 539 (Fla. 1st DCA 2020). To that end, rule 12.490(b)(1) requires that before a general magistrate hear a family law matter, a trial court must enter an order of referral and that the parties consent to the referral to the general magistrate. Moreover, it is well established that where a general magistrate addresses matters beyond those referred by the trial court, any findings of fact and recommendations on that issue are a nullity. Waszkowski v. Waszkowski, 367 So. 2d 1113, 1113 (Fla. 3d DCA 1979) [. . .]” The case was therefore remanded to the trial court to reverse the order on the petition for modification of time-sharing.

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