Sandy T. Fox, P.A. Secures a Win for a South Florida Father Who Was Deprived of His Constitutional Rights in a Timesharing Modification Case

In any type of court case, including a Florida family law case, there’s the potential to think that you’re “behind the 8-ball.” Even if you find yourself in a very disadvantageous position legally, it is important not to assume that you have no options. Many times, under the law, you have more options than you might think, and skilled representation can make the difference between success and failure. Don’t give up on your case; take action instead and retain skilled Florida counsel. One South Florida father did exactly that, retaining our firm, and successfully getting a modification of his timesharing agreement overturned.

Our client, J.M., was a father who found himself hauled into court on the mother’s “emergency” request to modify timesharing. Filing an emergency motion can possibly allow you to get a hearing before a judge on an expedited basis. Even if you find yourself on the defending side of such a motion and facing a hearing in the immediate future, it is important to make every effort to retain counsel.

J.M. did not have a lawyer at his emergency hearing. The judge let the mother testify and let her call a witness. After the clock passed 5:00 p.m., the judge announced that the allotted time had expired and that the hearing was over. The father had not testified, had not presented any evidence and had not even finished cross-examining the mother. Unsurprisingly, based on this limited array of evidence, the trial court ruled in favor of the mother.

J.M. retained our firm and we filed what’s called a “writ of certiorari” with the court of appeal in Miami. In this case, that meant that the father was asking the court of appeal to quash (i.e., void) the trial court’s ruling in favor of the mother. The court of appeal sided with our client because of the proof of a clear constitutional violation. Everyone is entitled to “due process of law” under the constitution. One way that a person can suffer a due process violation is if the court before which he appears fails to give him a “meaningful opportunity to be heard.”

The procedural rules attached to emergency custody or timesharing motions actually can allow the court to rule based solely on evidence presented by the requesting parent. Those situations are generally limited to things like a risk of physical harm to the child or the child being on the verge of being taken out-of-state. The mother made no such claims here. She simply asserted that she needed an immediate modification of timesharing because, without it, the child “would face a longer commute to school and might be forced to take public transit, which could negatively impact the minor child’s mental health and performance in school.”

Clearly, J.M.’s wasn’t a case of violence or absconding with a child. In other words, it wasn’t a case where making a change to timesharing without giving both parents a reasonable opportunity to be heard in a meaningful way was proper. The court of appeal recognized this and ruled for our client, throwing out the modification in favor of the mother.

Whether you are in need of a change to your timesharing arrangement, or need to oppose your ex-spouse’s attempt to reduce your time with your child, the skilled South Florida family law attorneys at Sandy T. Fox, P.A. are here to help. We have been providing clients with the effective representation they need to get results for 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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