Granting a Mother Relief She Didn’t Request Violated the Father’s Rights, Florida Court Decides

You go into court expecting and understanding that yours is a case about one thing. Maybe that one thing is alimony or maybe it’s your spouse’s petition for a domestic violence protective injunction. Once you’re in the hearing, though, the judge starts asking your spouse questions about your timesharing arrangement with your children. At the end, the judge alters your timesharing plan and increases your child support obligation. If that happens, what can you do? Would know how to handle such a scenario? It is not unreasonable for most people to have no idea how to respond. This is just one example among many where it pays to have representation from a skilled South Florida family law attorney, so that you can be sure that your rights are protected.

A very recent case from Miami-Dade County was example of how this can happen and what you can do. L.R.L. and J.R. were a couple who had three children together. After eight years of marriage, the wife filed for divorce in September 2017. The wife filed two petitions, one in 2016 and one 2017, seeking domestic violence protective injunctions. In her allegations, the wife asserted that the husband had a history of bipolar disorder, that he was not taking his medication and he had recently undergone a psychiatric hospitalization.

The husband also allegedly showed up at the wife’s front door between 4:00 and 5:00 a.m. one morning barefoot, half dressed and wearing a hospital sheet. This incident was one of the bases for the wife’s seeking the second injunction in 2017. Although the wife did not seeking any changes to the couple’s timesharing arrangement, the judge nevertheless asked the wife about timesharing. The wife then told the judge that she felt that the husband’s having unsupervised visitation was no longer proper.

The trial judge entered the injunction, and also modified visitation from unsupervised to supervised. The court additionally ordered the husband to begin paying $400 per month in child support.

The husband appealed the orders and the appeals court agreed with him regarding timesharing and child support. The law in Florida is very clear that “courts are not authorized to award relief not requested in the pleadings.” This wife’s case came before the court after she filled out a form petition. That form allows the spouse seeking the protective injunction to choose from several options, and indicate if she/he wanted the court to order a temporary parenting plan, order supervised exchange of the children, limit timesharing, prohibit timesharing or restrict timesharing by requiring all visits be supervised. This wife marked “N/A” on each, meaning that she was not asking the court to consider these things. If the wife had come to the conclusion that unsupervised visits were no longer appropriate, she should have selected the fifth of the five options, which indicated a desire to receive an order modifying visitation and making supervision a requirement, but she did not.

When a spouse selects one or more of these options, then that gives the other spouse notice that these issues will be adjudicated by the court and allows both spouses a fair opportunity to make their arguments and present evidence on each issue. When a petitioning spouse doesn’t select any of these options but the judge orders a change anyway, then the defendant has had his rights curtailed by not receiving a meaningful opportunity to prepare and be heard by the court, which is a violation of the constitutional right of due process.

Even family law cases, which can tend to be focused on factual findings, may involve issues of procedural errors or violations of parties’ constitutional rights, and those mistakes may harm you and your case. One way to make sure you are protected is with skilled counsel. The knowledgeable South Florida family law attorneys at Sandy T. Fox, P.A. are here to help. Our attorneys have been providing clients with the effective representation they need to get them positive results for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Court’s Refusal to Allow Mother to Present Her Case-in-Chief Violated Her Due Process Rights, Florida Appeals Court Says, Fort Lauderdale Divorce Lawyer Blog, June 19, 2018

How Your Constitutional Right to ‘Due Process of Law’ Can Affect Your Florida Family Law Case, Fort Lauderdale Divorce Lawyer Blog, April 12, 2018

 

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