Paperwork Problem Costs Florida Grandmother When Father Challenges Custody Ruling

In any civil court case, including family law cases, paperwork is an important part of achieving a successful outcome. The difference between a successful resolution and an unsuccessful one can be your ability to provide the correct documentation to the court to meet all of the procedural rules and to establish that you are entitled to the relief you’re requesting. In a recent case from Broward County, the Fourth District Court of Appeal upheld a trial court’s decision finding a due process violation, which the court declared was a result of a lack of written proof that a father received proper notice that his former mother-in-law was requesting a change in custody of the man’s child.

The case involved a child from a difficult family situation. The child’s parents were married only a year before divorcing. The final divorce order named the mother as the primary residential parent. Unfortunately, the mother died just two years later. A year before the mother’s death, the father received a 10-year prison sentence for armed robbery. After the mother’s death, the child split time between the paternal grandparents and the maternal grandmother.

Later that year, though, the maternal grandmother asked the court to award her temporary custody. The grandmother’s petition claimed that the father had given his written consent to this change, but there was no paperwork to prove this consent. The trial court issued an order indicating that the father had consented, that the grandmother was fit, and that the change was in the best interest of the child.

Six years later, shortly after getting out of prison, the father began challenging the custody arrangement. He argued that the court denied him his due process rights because he never received notice or a summons informing him about the hearing to give custody to the maternal grandmother. He also claimed that he never consented to the change in writing.

The trial court ruled for the father, and the appeals court upheld that ruling. The problem for the grandmother came down to paperwork. One area where this was an issue was the father’s written consent. The only written proof presented to the court that would tend to indicate that the father consented was a form order signed by the original trial judge that had a line item for parental consent and a checked box next to it. This, the appeals court concluded, wasn’t good enough.

There were many different ways the grandmother could have satisfied the documentation requirement. If there had been a copy of the father’s written consent attached to the change order, or to the grandmother’s petition, that would have sufficed. If there had been a consent document docketed in the trial court file, that would have been adequate. But, in this case, “the only reason to believe that he consented is because there is a box checked on the order itself,” and that would not suffice.

Ultimately, though, that didn’t doom the grandmother’s case, but the lack of notice to the father did. Section 751.04 of the Florida Statutes requires that parents receive “reasonable notice and opportunity to be heard . . . by service of process, either personal or constructive.” In this case, the grandmother had no proof that she properly served notice to the father regarding this change petition. Without that documented evidence, the grandmother was unable to persuade the trial court not to rule that the father never received notice and therefore did not receive due process.

Achieving a beneficial outcome for your family can sometimes require the involvement of the courts. Sometimes success in court comes down to having the right documents, and it is very important to make certain that your case is not tripped up by a paperwork problem. The diligent South Florida child custody attorneys at Sandy T. Fox, P.A. have been assisting families in Miami-Dade, Broward, and Palm Beach Counties, as well as around Florida, in dealing with these extremely important and personal legal matters, and we can make sure all your i’s are dotted and t’s crossed. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Florida Court Upholds Enforcement of Colorado Order Granting Visitation to Grandparents, Fort Lauderdale Divorce Lawyer Blog, April 7, 2015

Mother and Child Reunion Put on Hold After Court Decides to Hear More Evidence Regarding Best Interest of Child, Fort Lauderdale Divorce Lawyer Blog, Sept. 24, 2014