Fort Lauderdale Divorce Lawyer Blog
Having a judge rule against you after a timesharing modification hearing in which you weren’t given a fair chance to argue your side can make you feel upset, frustrated and maybe hopeless. When that happens, don’t just give up, but don’t simply dash off to file an appeal on your own, either. A skilled South Florida family law attorney may help you spot additional flaws in your hearing or your judge’s orders that you can use effectively to achieve success.
For example, one Miami-Dade County mom, who retained this firm for her case, was able to use due process errors to get her timesharing back. S.T., the mother, was divorced with two twin daughters. The parents’ modified parenting plan called for each parent to share parental responsibility and receive equal timesharing.
Early in 2020, the mother canceled one daughter’s dental surgery due to “a lack of compliance with essential preoperative instructions.” It’s useful to know that the mother was a practicing physician, so she, in all likelihood, came into this dental surgery with considerably more knowledge of medicine and preoperative medical procedures than just your “average” mom. Based on this canceled surgery, the father filed an “urgent motion” asking the court to cut off all of the mother’s timesharing.
The motion document “contained scandalous allegations of parental alienation.” The trial judge convened an expedited hearing. Each side’s legal team told the judge what evidence they would offer. Then the father asked the judge to interview the children in the judge’s chambers. The judge called a recess, interviewed the children and, based almost solely on her interview of the daughters, ordered that nearly all contact between mother and children be cut off. (The judge gave the mother only two shared meals at restaurants every week. Of course, once the COVID-19 restrictions took effect and all restaurants closed to dine-in guests, the mother ended up with no timesharing at all.)
The judge, who refused to give the parents a summary of exactly what the children said in chambers, offered only a general articulation “that the mother exhibited inconsistent moods.”
Would you know what to do if that happened to you? You might say, “There’s no way that a simple finding that I was ‘moody’ is enough to take away my timesharing!” The reality is, though, that the law gives trial court judges a lot of leeway in determining what is in the best interest of the children and ordering outcomes that further that objective. If you tried to go into the Court of Appeal on your own and argued only the above argument, there’s a good chance the appeals court would rule against you.
The trial judge’s hearing denied the mother her right to due process
Fortunately for S.T., she had this law office on her side. That was “fortunate” because there was a more fundamental problem with her hearing, and it was the key to getting the trial judge’s order thrown out on appeal. While there are many circumstances where a child’s testimony in a family law case between her parents can, and should, be taken by the judge inside her chambers, there are still rules and restrictions regarding the process.
For one thing, Florida law says that the proceedings in chambers should be “recorded unless otherwise stipulated by the parties.” Additionally, whenever the children’s in-chambers testimony is the main thing that the judge relies upon when making her ruling, the law says that “divulging of information ascertained from the in-camera interview… is required by due process principles.” In addition, constitutional guarantees of due process forbid judges from using evidence in such “a way that forecloses an opportunity to offer a contrary presentation.”
That’s exactly what happened here. There was no stipulation, yet the interviews were not recorded. The judge relied almost solely on the daughters’ testimony in creating her order, yet she never divulged with any specificity the information she received in those interviews. Furthermore, after the judge held those interviews, she did not allow the mother to present any opposing evidence to the assertion about the mother’s “inconsistent moods.”
That meant that the process that resulted in the loss of the mother’s timesharing was something that violated her constitutional right of due process and the order had to be reversed.
Whether you are facing a divorce, an alimony or child support case, a timesharing action, or other parental responsibility matter, having the right legal representation can be invaluable in getting you the appropriate outcome you need. For the thoughtful advice and knowledgeable advocacy that your case deserves, rely on the skilled South Florida family law attorneys at Sandy T. Fox, P.A. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.