Posted by Nydia Streets of Streets Law in Florida Child Custody

What is a writ of certiorari in a Florida child custody case? This is a way to appeal a decision of a trial court that is alleged to cause irreparable harm. In many cases, it may not be possible to appeal a temporary order entered in a case. However, this writ allows for appeal of some temporary orders. This was an issue in the case Payne v. Koch, 5D21-2427 (Fla. 5th DCA April 14, 2022).

The father in this case filed a motion for pick-up order. After a hearing, the judge ordered that the child attend behavioral therapy and required both parties to equally share the cost of the same. This relief was not requested by either party. The father appealed.

The appellate court noted that in order to qualify for certiorari relief, a petitioner must show there is a material injury that cannot be corrected on appeal, and that the court departed from the essential requirements of the law. First, the court concluded there was a showing of material injury where requiring the child to attend therapy that the father opposed went against his constitutional rights of privacy in rearing his child. The court then concluded that the trial court departed from the essential requirements of the law because no notice was given to father that this would be an issue at the hearing. The court held “[T]he trial court ‘on its own motion’ ordered counseling services not requested by either party and ordered Father to pay for a portion of those services. Father’s limited response to this surprise relief after it was ordered did not constitute trial by consent nor did it cure the trial court’s due process violation.”

Schedule your meeting with a Miami family law attorney to understand how the law may apply to your case.