Fort Lauderdale Divorce Lawyer Blog
Florida courts handling child custody disputes are driven by what is in the best interest of the child. Absent an emergency situation, though, parents in child custody cases have the right to due process, which means, among other things, they should be provided notice of any hearings impacting their rights. If they are denied such notice, any judgment entered against them may be reversed, as discussed in a recent Florida opinion issued in a custody case. If you have questions about what measures you can take to protect your rights regarding time-sharing and parental responsibility, it is wise to speak with a Miami child custody attorney.
Factual History and Procedural Setting
It is reported that the wife and the husband were divorced and shared custody of their minor child pursuant to a parenting plan. The husband subsequently filed a supplemental petition to modify parental responsibility and other aspects of the parenting plan. The trial court then entered a judicial default against the former wife for failing to respond to the husband’s petition.
Allegedly, the wife, who was representing herself pro se at the time, did not designate an email address for service, and service was not effectuated following the required procedures. Despite this, she received notice of the proceedings through the email address used by the court and the former husband. The court entered a default judgment against her, modifying her parental responsibility and time-sharing rights. The wife appealed, arguing that she was denied proper notice before the entry of default against her. Additionally, she contested the husband rather than the court, setting the trial date.
The Right to Notice in Child Custody Cases
The primary issue on appeal was whether the wife received adequate notice before the entry of the default judgment. It acknowledged that while strict compliance with service requirements was not met, the former wife had received actual notice of the proceedings through email, as evidenced by her verified motion for rehearing.
However, the court found procedural errors in how the trial was set. According to Florida Family Law Rule of Procedure 12.440(c), the court itself must enter an order setting the action for trial, which was not done in this case. Instead, the former husband sent a notice of hearing, which did not fulfill the rule’s requirements. Furthermore, the notice period provided was only eight days instead of the mandated ten days.
Relying on precedents, the court highlighted that a notice from the opposing party does not suffice and that the trial court must set the trial date. Consequently, the court reversed the trial court’s orders and remanded the case for further proceedings, ensuring that proper notice and procedures were followed in setting the trial date.
Speak with a Knowledgeable Miami Attorney
If you need guidance on how to safeguard your parental rights, it is prudent to speak with an attorney. The knowledgeable Miami child custody lawyers at the Law Offices of Sandy T. Fox, P.A. will explain your options and assist you in achieving a fair result. Contact us at 800-596-0579 or use the online form to arrange a consultation.