How Your Constitutional Right to ‘Due Process of Law’ Can Affect Your Florida Family Law Case

Many times, people may associate legal phrases like “due process of law” with criminal cases. The reality is, though, that all parties in criminal and civil cases are entitled to due process of law. Part of this due process protection says that a court generally cannot take action against you without proper notice and a chance for you to be heard. To make sure that all of your rights, including your constitutional rights, are protected in your case, be sure you have a skilled Florida child custody attorney on your side.

One recent family law case in which this issue of due process played a key role in the outcome was a matter that involved a long-distance family dynamic and some allegedly dysfunctional relationships. The father lived in southwest Florida, while the mother lived in Indiana. The Florida courts had jurisdiction over the issue of timesharing. Problems allegedly began emerging, and, in early 2017, the mother decided to take legal action. According to the mother, the father was taking improper steps to alienate the children from her. The “extreme” alienation allegedly included the father’s urging the children not to obey the mother and his making “hateful, inflammatory, outrageous and false allegations” about the mother in his social media posts.

In a situation like this, there are two types of rulings by the judge that the mother could seek. Normally, a modification of timesharing would only take place after the court gave both sides notice of a hearing, allowed both sides to attend the hearing, and heard both sides’ proof. In “emergency” situations, though, a court can take action without going through these steps. That’s what happened in this case. The mother requested emergency relief during the mid-morning of Feb. 8, 2017. The father’s former attorney found out about the hearing in the 3 o’clock hour that afternoon, but he no longer represented the father. At 10:30 the next morning, the hearing went forward without the father or any legal counsel representing him. The judge ordered the suspension of the father’s timesharing, cut off all contact between the father and the children, and ordered the father to undergo a psychiatric evaluation.

The Court of Appeal threw out that order, though. The problem was not related to the alleged underlying facts. The problem was a procedural one related to the father’s constitutional rights. Each person is entitled to due process of law, which means that they are entitled to reasonable notice to any hearings in which they are a party. While the exact amount of notice that must be given to satisfy this reasonableness requirement varies from case to case, there has never been a case related to parental rights in Florida in which a notice period of less than 24 hours was ruled sufficient. In other words, the (at most) 19 hours’ notice the father had in this case was not a long enough period of time to be legally reasonable and satisfy his right to due process of law. This meant that the order against the father had to be thrown out.

In any family law dispute, you have certain rights guaranteed by the federal and Florida constitutions. To make sure that all of your rights are fully protected, talk to the experienced South Florida child custody attorneys at Sandy T. Fox, P.A. Our attorneys have been helping our clients and their families with timesharing and other family law cases for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

What It Takes to Prove That the Judge in Your Florida Child Custody Case Should Be Disqualified from Your Case, Fort Lauderdale Divorce Lawyer Blog, March 27, 2018

How the Rules Related to Jurisdiction Can Affect Your Family Law Case in the Florida Courts, Fort Lauderdale Divorce Lawyer Blog, Nov. 28, 2017