In a child custody and visitation matter, absent an emergency, the failure to give notice of a temporary custody hearing is a denial of due process. In a recent case captioned Suleiman v. Suleiman the Florida Court of Appeal had before it a case where the former husband obtained an emergency ex parte order which modified the parties’ timesharing schedule. The Court of Appeal reversed because the former wife was denied due process and because the modification of the custody and visitation schedule was inappropriate. A final judgment of dissolution was entered on January 22, 2008. The father was awarded visitation with the children every Wednesday and on alternating weekends. The former wife later remarried and moved to Polk County, Florida, with the children and her new husband. The former wife took the children out of the Orange County schools and enrolled them in schools in Polk County.
On December 16, 2014, the former husband filed an ex parte emergency motion for return of children. The trial court granted the former husband’s ex parte motion without notice to the former wife or giving her a hearing. The trial court ordered the former wife to return the children within twelve hours of being served with the order. The former wife filed a motion to vacate the ex parte order.
The Court of Appeal ruled that unless there is a true emergency , the failure to give notice of a hearing deprives the opposing party of its right to due process. The Court of Appeal stated that in order to win a motion for temporary modification of custody, the requesting party must prove that a substantial change in conditions has occurred, and that the best interests of the children will be promoted by a modification of custody and timesharing. An emergency ex parte order changing custody and timesharing may be warranted when children are threatened with physical harm or are about to be improperly removed from the state. The appropriate mechanism to challenge an ex parte order is by filing a motion to dissolve the order. At that point, the party that obtained the initial order has the burden to demonstrate that there is a sufficient basis to support the issuance of the order. Additionally, decision to modify child custody and visitation must be grounded upon the best interests of the children and not as a sanction against one of the parties.
To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.