How a Judge’s Reliance on Non-evidentiary Information Allowed a Florida Father to Get an Unfavorable Ruling Thrown Out

In many circumstances, the success or defeat of your Florida parental responsibility, timesharing and/or child support case will come down to factual issues. These issues can be things like parental fitness, a parent’s earning potential or the child’s educational needs. Other times, though, issues of law and/or legal procedure are at the center of a case. Whether your case turns on issues of fact or issues of law, your odds of success can be enhanced by having an experienced South Florida family law on your side presenting your case.

D.P.’s case was one heavily influenced by issues of law. In 2010, L.R. gave birth to a son. L.R. was not married at the time, but D.P. “was recognized by all concerned” as the child’s natural father. As D.P.’s relationship with the mother declined, he filed for court recognition of his paternity in 2017. The case was set to resolve issues of parental responsibility, timesharing and child support.

The father was a “no show” at a court-ordered mediation and was sanctioned for that failure to appear. At the final hearing, the trial judge tried to find a mutually agreeable solution but was not successful. The mother’s attorney made what the law calls a “proffer” of the “substance of her case.” A proffer means that one party presents to the judge evidence that she would use if allowed at trial. It is not evidence actually admitted into the record, but simply one party’s representation of what she would have put on the record if allowed. The appeals court indicated that, after the lawyer’s proffer, the “father then addressed the court regarding his timesharing and employment history.”

After that, the trial judge issued his final ruling on parental responsibility, timesharing, and child support, which was unfavorable to the father.

At this point, it is worthwhile to pause for a moment and take note of some details. The appeals court’s opinion clearly mentions the “mother’s counsel” at the hearing but, at no point, makes mention of the father having a lawyer. It is a distinct possibility, if not probability, that the father had no legal counsel of his own at those junctures in the process. This should stand as a lesson for anyone going through a divorce or family law litigation: you may think that you can’t afford to have skilled legal counsel but, in reality, you can’t afford not to.

Constitutional due process and your Florida family law case

By the time D.P. appealed that unfavorable trial court ruling, he did have legal representation, which was a wise move. His legal team argued that, by relying on the mother’s proffered evidence, the trial judge denied the father his constitutional right to due process of law.

The appeals court agreed. Florida law is very clear that “the argument or proffer of counsel, not rendered under oath, absent a clear stipulation, does not constitute admissible evidence.” In other words, unless both parties reach a mutual stipulation in court stating that the arguments or proffers of attorneys constitute valid evidence, the arguments and proffers of the attorneys in a case do not constitute valid evidence. That’s because a party cannot cross-examine or impeach the arguments or proffers of opposing counsel.

Relying on these things denies the affected party a meaningful opportunity to be heard by the court, which is a basic element of due process. In D.P.’s case, the sole basis upon which the trial judge resolved the issues of parental responsibility, timesharing and child support was the proffer made by the mother’s lawyer. The judge’s doing so was a clear violation of the father’s constitutional rights, so he was entitled to a reversal and a new hearing.

An hour from now or a day from now, you may not remember what a “proffer” is, but hopefully you will remember that, regardless of the issues in your family law case, it is very much worth it to you to have effective and experienced legal counsel on your side. The diligent South Florida family law attorneys at Sandy T. Fox, P.A. are here to help. Our knowledgeable attorneys have many years of providing effective representation in a full array of family law cases. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

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