Fort Lauderdale Divorce Lawyer Blog
In any child custody dispute, the Florida courts’ main priority is what is in the best interest of the child that is the subject of the action. Therefore, in some cases, they will issue emergency ex parte orders if they deem it necessary to protect the child. Such orders are only appropriate in certain situations, though, as discussed in a recent Florida opinion. If you need help protecting your custody rights, it is in your best interest to talk to a Miami child custody attorney at your earliest convenience.
History of the Case
It is reported that the mother and father, who were divorced, had a minor child for which they shared time-sharing and parental responsibilities. The father filed a motion for contempt against the mother, alleging she was not ensuring the child’s attendance at school during her designated time-sharing. During a hearing on this motion, the father disclosed that the mother had taken the child to Orlando without providing details about their whereabouts or the individuals involved. The judge, although acknowledging these issues, suggested the father file an emergency ex parte motion to suspend the mother’s time-sharing instead of addressing them immediately.
Allegedly, thirteen days later, the father filed the emergency motion, which led to an ex parte order restricting the mother’s overnight time-sharing and prohibiting her from leaving the county with the child. At a subsequent return hearing scheduled on a non-evidentiary motion calendar, the father sought to extend these restrictions to investigate further, while the mother argued the ex parte order was invalid from the start due to procedural errors and lack of due process. The court, initially planning a non-evidentiary review, abruptly shifted to offer an evidentiary hearing on the spot, which the mother objected to on grounds of inadequate notice and due process violations. Eventually, the court modified the ex parte order to allow limited time-sharing and scheduled a return hearing months later. The mother appealed.
Due Process Rights in Child Custody Cases
On appeal, the mother argued that the trial court violated her due process rights. the court ultimately agreed and reversed the trial court ruling. Specifically, the court found that the ex parte order issued against the mother lacked sufficient justification under family law rules, as the alleged threats did not meet the criteria for immediate and irreparable harm necessitating such emergency relief.
Moreover, the court stated that the prolonged delay in scheduling a return hearing deprived the mother of timely due process rights, which require an expedient opportunity to challenge such orders. The court ultimately upheld the existing orders temporarily but mandated an immediate evidentiary hearing to fairly assess the issues raised. Additionally, it ordered the case to be reassigned to a different judge, criticizing the original judge’s interventionist approach and perceived bias in advocating for the ex parte order, which compromised the appearance of judicial neutrality.
Meet with a Seasoned Miami Attorney
If you have questions about how you can protect your parental rights, it is advisable to meet with an attorney. The seasoned Miami child custody lawyers at the Law Offices of Sandy T. Fox, P.A. will explain your options and support you in pursuing a just outcome. Reach out to us at 800-596-0579 or use the online form to arrange a consultation.