Posted by Nydia Streets of Streets Law in Florida Child Custody
When parties enter a parenting plan in Florida, and it is ratified by a court order, there are limited situations in which that parenting plan can be cancelled. This was an issue in the case Chan v. Addison, 6D23-2856 (Fla. 6th DCA April 19, 2024).
As part of their divorce case, a parenting plan was ordered by the court. No motion for rehearing or appeal was filed regarding the parenting plan. Later, the former husband filed a petition to modify the parenting plan, alleging the parenting plan was legally insufficient because it did not contain provisions for communication between the parents and the child. He asked that the court modify the parenting plan to include communication provisions. The former wife filed a motion to dismiss which was denied. The trial court ultimately concluded the parenting plan did not comply with the Florida Statutes because it did not contain communication provisions, and sua sponte, struck the entire plan. The former wife petitioned the appellate court for a writ or prohibition or certiorari.
The appellate court noted it was treating the former wife’s petition as an appeal of a non-final order because it determines ‘the rights or obligations of a party regarding child custody or time-sharing under a parenting plan.’ Fla. R. App. P. 9.130(a)(3)(C)(iii)b.” The court reasoned “Because the order is appealable, neither a writ of prohibition nor a writ of certiorari is available.”
The court then held “Turning to the merits, we agree with [the former wife] that it was error for the trial court to strike the Parenting Plan. Only [the former wife’s] amended motion to dismiss was noticed for hearing. Furthermore, [the former husband’s] amended supplemental petition did not request that the trial court strike the Parenting Plan. Thus, [the former wife] was not on notice that the trial court would sua sponte grant such relief.” The court concluded “even if the Parenting Plan fails to provide for a means of communication between the child and Addison, none of the statutes or cases cited by the trial court or Addison authorized the trial court to strike the Parenting Plan in its entirety sua sponte and without proper notice.”
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