Posted by Nydia Streets of Streets Law in Florida Child Custody
Can a parent’s time-sharing be suspended without notice? Usually, no. Due process requires that all parties have notice of what will happen in their case so that they are prepared to defend against allegations made. The law generally considers “surprise” actions to be unfair in the course of litigation. Notice was an issue in the case Oddo v. Oddo, 5D22-0142 (Fla. 5th DCA June 3, 2022).
In this post-judgment child custody case, the father filed a motion to suspend the maternal grandmother’s time-sharing and sought to prevent the mother from terminating the children’s therapist. At a hearing on the motion, the trial court found the mother’s actions to be disturbing, terminated her time-sharing and ordered her to undergo psychiatric and psychological evaluations. The father did not request termination of the mother’s time-sharing, nor did he request that she undergo any testing. The mother appealed.
The appellate court found the trial court’s actions to be error and a violation of the mother’s due process rights. The court held “On appeal, Former Wife argues the trial court erred in modifying her time-sharing without notice and a meaningful opportunity to be heard, in violation of her due process rights. We agree. [. . .] We also agree with Former Wife’s similar argument that the trial court violated her due process rights by sua sponte ordering the psychological and psychiatric evaluations. See Asteberg v. Russell, 144 So. 3d 606, 608 (Fla. 2d DCA 2014) (concluding the lower court departed from the essential requirements of the law in ordering former wife’s mental evaluation without notice to her that her mental condition was at issue) [. . .]”
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