Generally, in order to obtain a modification in your timesharing agreement, both parents must be placed on notice that the court’s ruling may bring about a change in the current plan. In some situations, a court may alter the timesharing arrangement without notice if an emergency exists. The 3d District Court of Appeal recently overturned a Miami-Dade County trial court order because the mother did not have proper notice, and the conditions for an emergency change did not exist.
After several years of marriage, Tal Bronstein and Elizabeth Bronstein divorced in 2012. The couple had one minor child. By the time the divorce was finalized, the husband lived in Colorado.
Two years later, the husband sought to modify the timesharing plan, but his motion was denied by the trial court. After this defeat, the husband hired a private investigator to follow the wife. The investigator allegedly spotted a man at the wife’s home smoking an unknown substance in a pipe. The man on the porch was reportedly a former boyfriend of the wife. The wife had previously testified that she was no longer seeing this man.
The husband again returned to court in April 2015, this time seeking to vacate the court’s previous judgment on the basis of the wife’s “fraud perpetrated on the court,” related to the boyfriend. Five days after the husband filed his motion, the trial court deemed the case an emergency and set a hearing within 48 hours. The trial court, without taking any testimony or receiving any evidence, ordered the child to stay with the father in Colorado (where he was already situated due a scheduled visit) until the court could hold a full evidentiary hearing. The court scheduled that hearing for August.
The wife appealed and was successful. In any court case, the law requires that all parties receive notice of the hearing date and time, and they must also receive notice regarding what type of relief the court may award to the successful party. In the Bronsteins’ case, although the wife had notice of the date and time of the hearing, which she attended, she did not have notice of the type of order the court might enter. The husband’s motion did not expressly seek modification of the timesharing agreement, yet the court’s order effectively placed the child in Colorado with the father 100% of the time from April until August, which was a radical departure from the existing timesharing agreement.
There are only limited bases for taking the type of action the trial court did in the Bronsteins’ case. There must be evidence that a true emergency exists, such as a threat of physical harm to the child or a risk of the child’s improper removal from the state of Florida. The husband’s motion did not present evidence of any of these things.
Arriving at successful timesharing arrangements can be difficult, since these cases are often fueled by a variety of emotions and motivations. For thoughtful advice and representation in your timesharing case, consult the South Florida family law attorneys at Sandy T. Fox, P.A. Our hardworking attorneys can help your family reach a workable resolution.
Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
How to Obtain a Custody Modification in Florida, Fort Lauderdale Divorce Lawyer Blog, Feb. 11, 2015
Dealing With Timesharing Issues in Long-Distance Situations, Fort Lauderdale Divorce Lawyer Blog, Nov. 10, 2014