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When the Court in Your Florida Timesharing Case Can — and Can’t — Grant Relief that Neither Party Asked For

If you’ve read about enough court cases, you’ve probably encountered tales of people who made some regrettable choices. Perhaps it was the criminal defendant who appealed his sentence only to have the appellate process end with him getting an even longer sentence. This may give you pause if you’re considering a motion regarding your ex-spouse’s misconduct in your parental responsibility and timesharing case, as you may fear that going back to court may mean you exiting with a worse arrangement than when you entered. You should not, however, let this fear deter you. With the help of a skilled South Florida timesharing lawyer, you will generally be protected from this happening.

Confused about what we mean? Let’s look at this real-life parental responsibility and timesharing example from the Orlando area. A trial court had ordered two parents to place their child in a pre-K program roughly halfway between the parents’ homes. Because the child had an individual education plan (IEP,) that was impossible, and the school system ended up placing the child in a school close to the father’s home.

According to the father, the mother frequently did not transport the child to pre-K when she had timesharing. Frustrated, the father filed a motion asking the judge to hold the mother in contempt and to suspend the mother’s timesharing. The mother filed no counter-motions.

The judge unilaterally decided, not only not to hold the mother in contempt, but also to move the child to a different school closer to the mother’s home. That relocation meant that the child would have to attend daycare following the conclusion of each day’s pre-K classes. The judge ordered the father to pay 63% of those daycare costs.

The father presumably went to court to ensure that his child attended pre-K regularly, and left with a substantial new daycare expense that he was primarily responsible for paying.

How the Constitution’s Guarantee of Due Process May Protect You

Fortunately for the father, his appeal was successful. The trial court’s order was not permissible under the law. Because the change that the judge ordered (which is what the law calls the “relief granted”) was not a form of relief that either side sought in the motions that were before the court, the changes had to be reversed.

The law says that trial courts generally only have the authority to award relief if it is a type of relief that a party sought. When a judge goes outside that range, the order potentially constitutes a violation of one of the parents’ constitutional Due Process rights.

In this case, the only relief being sought was the relief pursued by the father, and he sought only to have the mother held in contempt and to have her timesharing cut off. There was nothing in that motion that “opened the door” to addressing daycare, daycare costs, or a change of school. There was nothing, then, that placed the father on notice that he needed to be prepared to argue those points at the hearing. By addressing those topics and making those changes, the judge denied the father his Due Process rights to make arguments and present evidence on the issues of school, daycare, and daycare costs.

There are situations where issues may be tried even when they were not raised by the parties’ pleadings. If both parents agree to go ahead and put an issue before the judge, then the judge may have the authority to rule because the issues were “tried by consent.”

That did not happen in this father’s case. The appeals court pointed out that the father “objected on numerous occasions to the trial court’s consideration of changing the child’s school location,” so this definitely was not an example of trial by consent.

You potentially may have many fears and concerns going into a family law case. Being blindsided by something that wasn’t supposed to be part of your hearing shouldn’t be one of them. The right legal team can help you ensure that you are protected at every step in the process. Count on the experienced parental responsibility and timesharing attorneys at Sandy T. Fox, P.A. to provide the kind of powerful and effective representation that your case and your family deserve. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation today.

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