Posted by Nydia Streets of Streets Law in Florida Child Custody

How does the entry of a default affect a Florida child custody case? A default can be entered when a party fails to respond to a petition on time, and can also be used as a sanction when a party is not following court orders. The usual consequence of a default is that the party against whom it has been entered admits the allegations in the petition. This was an issue in the case Mendez v. Mendez, 4D2024-0113 (Fla. 4th DCA July 10, 2024).

In this paternity case, a default was entered against the mother after her attorney withdrew. The record showed she was served at a mailing address at times even though the order withdrawing her attorney designated an email address for her. Because the mother was not appearing at hearings, a default was eventually entered against her, which led the court to ultimately enter a final judgment based on the default. The mother moved for rehearing, arguing she was not properly served because she had moved from the address at which she was purportedly served. The trial court denied the mother’s motion and she appealed.

The appellate court noted that service to the mother’s mailing address was proper, since it was the mother’s duty to inform the court of a change in her address. However, the court also noted “Though apparently allowed by the rules, the trial court’s inconsistency in methods of service here was problematic. Although the rules now provide that parties not represented by an attorney are required to be served and accept service by email, the rules inconsistently require service by regular mail of orders setting trial or final judgments. It is understandable that a litigant, expecting to be served by email, may forget to notify the court of a change of street address for regular mail service. In this case, the trial court and the Father served the Mother sometimes at her email address and sometimes at her street address. This inconsistency is the root of the problem in this case.”

The court went on “Thus, even though the Mother did not attend the fifteen minute default hearing, she still should have been given the opportunity to present evidence about S.D.L.’s best interests when she presented that issue in her motion for rehearing and showed excusable neglect for lack of notice of the hearing. The trial court erred in failing to grant her motion for rehearing and open the case to allow for her to present evidence regarding the child’s best interests.” The court also noted that the final judgment lacked findings regarding the statutory factors for considering a parenting plan. The matter was reversed for the trial court to rehear the matter.

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