Fort Lauderdale Divorce Lawyer Blog
When people with children decide to end their marriage, one of their foremost concerns is usually how the divorce will impact their children and their parental rights. As such, they will often take great care when creating a parenting plan. The courts will generally incorporate parenting plans into divorce decrees as long as they are in the best interest of the children involved. While the courts can strike parenting plans, they cannot do so without following the proper procedure, as shown in a recent Florida opinion issued in a divorce action. If you have questions about your rights with regard to divorce, it is wise to talk to a Miami divorce attorney.
Facts and Procedure of the Case
It is reported that the wife initiated an action seeking a dissolution of her marriage to the husband. The trial court issued a Final Judgment of Dissolution of Marriage, incorporating the parties’ Parenting Plan concerning their child’s time-sharing rights and obligations. Subsequently, the husband filed a supplemental petition, later amending it, alleging deficiencies in the Parenting Plan, particularly its lack of provisions for communication between him and the child.
It is alleged that the wife moved to dismiss the husband’s petition and then amended her motion. During a hearing on the wife’s amended motion to dismiss, the trial court not only denied the motion but also, without prior notice, struck the Parenting Plan entirely, citing its failure to meet statutory requirements regarding communication means between the husband and the child. The wife filed a petition seeking a writ of prohibition or certiorari to challenge the trial court’s order.
Recourse for Improperly Stricken Parenting Plans
Upon review, the court determined that the order was appealable under the Florida Rules of Appellate Procedure, as it affected the parties’ rights regarding child custody and time-sharing. Since an appeal was available, writs of prohibition or certiorari were not applicable. As such, the court treated the wife’s petition as an interlocutory appeal.
After reviewing the case, the court found that the trial court erred in striking the Parenting Plan. Notably, only the wife’s motion to dismiss was scheduled for the hearing, and the husband’s petition did not request striking the Parenting Plan. Moreover, while statutes emphasize communication provisions in parenting plans, there was no authority for the trial court to strike the plan without proper notice.
Consequently, the court reversed the trial court’s decision to strike the Parenting Plan and remanded the case for further proceedings consistent with its opinion.
Talk to a Dedicated Miami Attorney
In many divorce actions, the parties not only have to resolve issues like how their assets will be divided but must also determine custody rights. If you have questions about how ending your marriage could impact your parental rights, it is smart to talk to an attorney. The dedicated Miami child custody lawyers of the Law Offices of Sandy T. Fox, P.A. are adept at helping people handle the emotional and legal challenges of divorce and custody actions, and if you engage our services, we will diligently pursue the best outcome possible in your case. You can contact us at 800-596-0579 or use the form online to arrange a consultation.